KULDIP NAYAR v. UNION OF INDIA AND ORS

Citation: [2006] SUPP. 5 S.C.R. 1

Court: Supreme Court of India

Bench: Y.K. SABHARWAL, K.G. BALAKRISHNAN, S.H. KAPADIA, C.K. THAKKER, P.K. BALASUBRAMANYAN

Case summary

KULDIP NAYAR v. UNION OF INDIA AND ORS.pdf

Judgment text

KULDIP NAYAR v. UNION OF INDIA AND ORS. AUGUST 22, 2006 [Y. K. SABHARWAL, CJ. , K. G. BALA. KRISHNAN, S. H. KAPADIA, C. K. THAKKER AND P. K. BALASUBRAMANYAN, JJ. ] ~ Representation of People Act, I950; Ss. I3, I4, I5, I7, I8, I9 & 201 Representation of People Act, 1951; Ss. 3, 59, 94 and I28 with Amendment Act 40 of2003/Constitution ofIndia, I950; Articles 19, 55, 66, 80, 249, 25I, 324, 327, 368 and 379; Ent1y 72 of the Union List and Tenth Schedule to the Constitution/Government of India Acts, I915, 1919 and 1935/Rules of Procedure and the Conduct of Business in the Lok Sabha; Rules 7, 8, 364, 365, 367 and 367A, 367B! Rules ofProcedure and Conduct ofBusiness in the Council of States: Rules 7, 252, 253 and 254: ~ Election to the Council ofStates-Eligibility-Requirement ofdomicile of the State to be represented-Deletion of by amendment from R. P. Act, 1951-Constitutionality of-Held: The legislative history ofthe Constitution reveals that residence has never.

been the constitutional requirement for constitution of the upper House-Residence is an incident of federalism which could be regulated by the Parliament as qualification, a subject matter under Article 84 ofthe Constitution-Amendment, so made, does notchange the character ofthe Council ofthe States as the election remain the law, ihe elected member remain representatives of the State and the choice and the decision as to elect the representative would remain with the State Assemblies-It does not affect the role, fi1ture prerogatives ofthe members of ~ the Council of States especially in the matter of legislation-Only the scope of consideration for election to the Council of States has been enlarged- It is passed by the Parliament in its legislative competence, without transgressing the provisions of Part-Ill of the Constitution or any other · provisions of the Constitution, hence not unconstitutional. ·,~ Amendment in R. P.

Act, 1951-Principle of Federalism-Effect of amendment-Held: Federal Principle dominant in the Constitu'ion and is one ofits basic features but it is not territory related-It is not the requirement ,,,. ~ of such principle that the representative of the States must belong to that State-It is the electorate who would represent the interest of the State- Hence, deletion of the requirement of residential qualification by the Parliament would not amount to violation ofthe basic features offederalism- Though the provision ofresidence/domicile existed in the 1951 Act, a Statutory Act, but it was not the constitutional requirement, hence its removal therefrom by wizy of the amendment is not unconstitutional and could not be challenged under the provi~ions of Article 368 of the Constitution.

Role of Members of Council ofStates in protecting the interest ofthe State-Held: They do not vote in the Parliament at the dictate of the State concerned, but according to their own views and party affiliation. Members ofCouncil ofStates-Qualifications of-Held: The provisions under Article 243 ofthe Constitution do not add the requirement ofdomicile to the qualification for membership of the Council of States. State Representatives -Residence as qualification-Held: In the absence ofexpress requirement ofresidence as a qualification, it cannot be read into Articles 80 and 84 of the Constiflltion. Power of Parliament in amending R. P. Act, 1951-Held: 1951 Act is enacted by the Parliament like any other law-Hence, Parliament is empowered to bring about amendments in it like any other Statute. Power of Parliament in changing law relating to election-Held: The Parliament is empowered to bring in such legislation-Articles 80(4) and 327 of the Constitution.

'Right to vote' and 'free and fair election '-Relation between-Held: Right to vote is not an ingredient ofthe free and fair elections-In fact, right to vote is a concept which yield to a concept of the attainment offree and fair election. • Election to the Council ofStates-Provisions not allowing outsiders to contest the election-Removal of-Held: Justified, by allowing the outsider to contest the election, the Parliament has in fact widened the choice ofthe elections without altering its character. Right to vote in secrecy-Effect ofProviso added to Sections 59, 94 and 148 ofR. P. Act, 1951 providingfor open ballot as an exception to the general rule ofsecrecy in the election for the Council ofthe States-Held: It does not affect on right to vote ofthe members as the Constitution itself has provided KULDIPNAYAR v. U. 0. l.

for election by secret ballot only where it thought fit to do so-However, ii is silent so far as election to the Council ofthe States is concerned-Though Election Commission is empowered under Article 324 to act and advice in such circumstances for the purpose of pursuing the goal offi"ee and fair election, but the Parliament is not bound by such advice in ter111s ofprovisions under Article 327 of the Constitution. Open ballot syste111 in preference to secret ballot syste111- Disqualification under the tenth schedule ofthe Constitution-Held: It cannot ~. be said that the open ballot system tends to expose the members of the Legislative Assembly disqualification under the tenth Schedule since that part of the Constitution is meant for different purposes.

Amendment-Introduction ofOpen Ballot System in lieu a/Secret Ballot System-Implication and justification of-Held: Open ballot system does not mean open to one and all-In terms of the amendment, only the authori::ed agent of the political party is allowed to see the ballot-However, the prerogative would remain with the voter to choose as to whether or not to show it to the awhorized agent, though liable to be cancelled in the event voter chose not to show it to the agent-fl. foreover, where elections are direct as in general elections, secret voting could be insisted upon as the voters have no party affiliation, but in case of indirect election.

the open ballot syste111 can be introduced as it is 111erely a reg1tfato1J' method to stern 011/ corruption, to ensure free and fair elections and to maintain purity of elections-Principle of secrecy is not an absolute principle, the legislative amendment cannot be struck down on the ground that different or better view is possible-Though secrecy ofballot is a vital principle for ensuring free and fair elections, however, ifsecrecy becomes a source ofcorruption the legislature have the capacity to remove it to serve the larger object of conducting free and fair elections.

Right to vote-Open ballot system-Imposing of reasonable restriction in ter111s ofArticle 19(2) ofthe Constitution-Held: Open baffot 11yste111 is in the interest ofmaimaining and protecting discipline in the political parties- It also prevents cross voting-Hence, ii amounts to imposing of reasonable restriction in terms of Article 19(2) of the Constitution, but it cannot be construed that by doing so the right to vote is taken away as each elected member ofthe State Assembly would be fi1lly entitled to vote for the Council ofthe States subject to the only restriction ofdisclosing to the representative of his party, to whom he has cast the vote. Doctrines: Doctrine of cuntemporanea expositio-Applicability of-Held: Not applicable as irrelevant in the facts and circumstances of the case. Words and Phrases: ·candidate' and 'the States '-Nexus between in the context ofelection to the Council of States-Discussed. 'Each '-Meaning of in the conlext of Article 80 of the Constitution.

'Ordinarily Resident '-Meaning and nature of in the context of Constitutional provisions. 'Ordinmy residence '-Meaning of in the context of qualification for membership ofeither Houses of Parliament. 'Representative of the Stale '-Meaning of-Held: The words 'representative of the State' do not in any manner connote that the elector! representative must also he an elector /voter registered in the State concerned. The petitioner has filed writ petitions challenging the amendments made in the Representation of People Act, 1950, whereby the requirement of "domicile" for getting elected a person to the Council of States is deleted.

He has challenged it on the ground of violation of the Principle of Federalism, basic structure of the Constitution; the petitioner has also challenged the amendments made in Sections 59, 94 and 128 of the Representation of People Act, 1951, whereby 'Open Ballet System' in lieu of 'secret voting' is introduced in the election of members of the Council of States as it violates the principle of 'secrecy', the essence of free and fair elections as also violating the voter's freedom of expression, the basic feature of the Constitution and the subject matter of the fundamental right under Article 19(1)(a) of the Constitution.

Petitioner contended that the impugned amendment to Section 3 of the RP Act, 1951 offends the principle of Federalism, the basic feature of the Constitution; it seeks to change the character of republic which is the foundation ofour democracy; that it distorts the balance of power between the Union and the States and is, therefore, violative of the provisions of the Constitution; that the reasons given in the Statement of Objects imd Reasons for the Amendment Act do not provide for any rational justification for the impugned amendment; that the reasons given in affidavit in reply, by Union of India, to justify the impugned amendment for amending Section 3 are different from the reasons given in the Statement of Objects and Reasons for the Bill; ~ KULDlPNAYAR v. U. 0. 1.

5 that the nomenclature "Council of States" indicates the federal character of the House and a representative who is not ordinarily resident and who does not belong to the State concerned cannot effectively represent the State; that India has adopted parliamentary system of democracy in which the Union Legislature is a bi-cameral legislature, that such legislature represents the will of the people of the State whose cause has to be represented by the members; that the impugned amendments in the Representation of People Act, 1951 removes the distinction in the intent and purpose of Lok Sabha and Rajya Sabha; that the mere fact that there exist numerous instances of infringement ofthe law concerning the requirements of residence cannot constitute a valid object or rational reason for deleting the requirement of residence; that the Constitution and the Representation of People Acts 1950 and 1951 respectively have always been read as forming part of an integral scheme under which a person ordinarily resident in a constituency is entitled to be registered in the electoral roll of that constituency; that the scheme guarantees the representative character of the Council; that by deletion of the word 'domicile' or 'residence' or by not reading the word 'domicile' or 'residence' in Article 80(4) of the Constitution, the basic requirement of the representative federal body stands destroyed; that requirement of domicile is so intrinsic to the \ I concept ofCouncil ofStates that its deletion not only negates the constitutional scheme making the working of the Constitution undemocratic but also violates the federal principle which is one of the basic features of the Constitution; that in terms of the amended Sections 3 and 4 of the 1951 Act, one can get elected as people's representative in the House of the People for a constituency in one particular State even though one is an elector registered as such in a Parliamentary constituency in another State; that by the impugned amendment in Section 3, the qualification for Membership of the Council of States is "equated" with that ofthe House of the People; that the impugned amendment has destroyed the essential characteristic of the Council of States because a person who is an elector, and so an ordinary resident, in any constituency in -\ India, not necessarily of a particular State can now be chosen to be a ) representative ofsuch State, only by virtue of being so elected to the Council ofStates by the Members of the Legislative Assembly of such State; that the need for a Second Chamber viz.

the Council ofStates has become redundant, in that it now merely duplicates the House of the People; that as a result of the impugned amendment, the person elected to the Council ofStates, if he is at all "representative" of anyone, he is only a representative of the State Assembly that elected him and not a "representative" of the State, as he was required to be under Article 80 of the Constitution; that the law enacted by 1.

Parliament had to prescribe some connection between the person standing for election and the State that he is to represent in the Council of States, which is now missing; that the words "representatives of the States" in Article 80(1)(b) and (2) and the words "representatives of each State in the Council of States" in Article 80(4) need to be interpreted in such a manner that it tends to strengthen the basic structure of the Constitution; that the use of the word "each" in Article 80(4), in relation to representation of States in the Council of States was not without significance, in as much as the stress is on providing representation to "each State" so as to give to the House the character of a body representing the States; that Article 80 does require the person in question to first be a representative ofthe State before he is elected by the elected members of the Legislative Assembly of that State; the mere fact of election by particular State Assembly of any "elector" in India cannot render that person as being "qualified" to represent that State; that the impugned amendment had failed to provide alternative additional qualification, since any citizen of India, resident anywhere in India, can now be elected by any State Assembly even when his registration as an elector is, outside that State; no further additional qualifications are provided to indicate his or her usefulness in the debates or discourses to take place in the Council ofStates; that by the impugned amendment a 'qualification' has been introduced which is not a qualification at all, and which only means that anyone in India who is 1 on the electoral roll of any Parliamentary Constituency in India can be chosen by any State Assembly in India as a representative of that State in the Council ofStates; that by the impugned amendment, Parliament has whilst purporting to set up "qualification" for membership to the Council ofStates failed to have due regard to the expression "representative of the State" in Article 80; that the impugned amendment violates the right ofsecrecy by resorting to open ballot system that is nothing but a political move by clique in political parties for their own achievement; that the impugned amendments violate the Fundamental Right under Article 19(l)(a) of the Constitution as well as the provisions in the Representation of the People Act, 1951, Universal Declaration of Human Rights and International Covenant on Civil and Political Rights; that free and fair election is a concept inherent in the democratic values adopted by our polity; that right to vote in an election under the Constitution of India, which includes the election of the representatives of States in the Council of States, is a Constitutional right, if not a Fundamental right; that the right to vote be invariably accompanied by the right ofsecrecy ofvote so as to ensure that the freedom of expression through vote is real; that the fact that election to fill the seats in the .

residence of a person seeking to be elected as member of either House does ~ not make one House duplicate of the other. Their role, functions, powers or prerogatives, especially in the matter of legislation, remain unchanged. [83-A) 8. The employment of the word "each" preceding the word "State", in the context of representation in the Council of States, is meant only to underscore the fact that the Legislative Assembly of each State was intended to be a separate electoral college for returning a member to fill in the seat allocated to the particular State as specified in the Fourth Schedule. Nothing more and nothing less. This is more so, in view of the fact that the expression "representatives of the States" had already occurred twice earlier in the preceding clauses of Article 80.

The word "each" was not required to be used in the context of Part C States (now Union territories), in Article 80(5), as originally provided or even later amended, since the manner of representation ofsuch units of the Union of India was left to be prescribed by the Parliament and since each such unit was not intended at that time to be provided with its own Legislative Assembly. Hence; it cannot be said that the use of the word "each" in Article 80(4) gives to the House the character of a body representing the States. (89-A-B-C-D) 9. There was a material difference between the qualification of domicile within the particular State as prescribed for the Council of States and the qualification of domicile within any Parliamentary constituency in India as prescribed for the House of the People. This was subject matter of debate in the provisional Parliament on 11th May 1951, at the time of consideration of the Bill, which would later take the shape of Representation of People Act, 1951.

In the course of the said debate it came to be pointed out as inco,ngruous as to why a candidate to the Council of State~ should be a resident ofthe State concerned while a candidate to the House ofthe People need only be a resident p in any Parliamentary constituency in the country. [92-F-G) 10. 1. It may be desirable to give a broad and generous construction to • the Constitutional provisions, lmt while doing so the rule of"plain meaning" or "literal" interpretation, which remains "the primary rule", has also to be kept in mind. In fact the rule of "literal construction" is the safe rule unless the language used is contradictory, ambigu::ius, or leads really to absurd results. (94-D-E) G. Narayanaswami v. G. Pannerselvam & Ors. , (1972J 3 SCC 717, followed. 10. 2. No contradiction, ambiguity, or absurdity is found in the provisions KULDIPNAYAR v. U. O. I. ofthe law as a result ofthe impugned amendment.

Even while construing the provisions of the Constitution and the RP Acts in the broadest or most generous manner, and following the rule of "plain meaning" or "literal" interpretation, the contentions of the petitioners cannot be acceded to. [94-H; 95-A[ II. I. A representative of the State is as much a Member of Parliament as is a member ofthe House of the People. The expression "representatives" is equally used with reference to the House of the People. There is thus no . \ distinction between the expressions 'members' and 'representatives'. Hence, the plea that the choice of expression "representative" in relation to the Council ofStates as against word "member" used in relation to the House of the People holds the key is rejected. [86-B-C[ '• • 11. 2.

Upon being given their plain meaning, the words "representatives of the States" in Article 80(l)(b), Article 80(2) and Article 80(4) must be interpreted to connote persons who are elected to represent the State in the Council of States. It is the election that makes the person elected the "representative". In order to be eligible to be elected to the Council of States, a person need not be a representative of the State before hand. It is only when 1 he is elected to represent the State that he becomes a representative of the State. Those who are elected to represent the State by the Electoral College, which for present purposes means the elected members of the legislative assembly of the State, are necessarily the "representatives" of the State. [95-B-C[ 11. 3.

Every member of Parliament, be one "nominated by the President" under Article 80(l)(a), or "a representative of the State" elected under Article 80(l)(b) read with Article 80(4) and (5), or a "member" of the House of the People elected under Article 81, fills a seat in Parliament. When a candidate is elected by the electorate comprising of the members of the Legislative Assembly of the State to represent the State in the Council of States, he is elected and chosen as "a representative of the State". The words "representative of the State" do not in any manner connote that the representative must also be an elector or a voter registered in the State itself. It is the status acquired upon election as a member of the legislature that bestows upon the person the character of a "representative". [95-E; 96-C-D] Shri V. V. Giri v. Dippa/a Suri Dora & Ors. , [1960] I SCR 426: AIR (1959) SC 1318 and B. R. Kapur v. State of T. N. & Anr. , [2001 [ 7 SCC 231, followed. ' 11. 4.

The expression "representative of each State" in Article 80(4) of the Constitution is not a qualification and cannot be read as a condition precedent for being elected. The Constitution has dealt with "qualifications" exclusively in Article 84 of the Constitution, as would also be clear from the marginal note besides the contents of the provision itself. [98-EI 11. 5. The word "representative" simply means a person chosen by the people or by the elected Members of the Legislative Assembly to represent their several interests in one of the Houses of Parliament. A person becomes a representative only after he is chosen in the prescribed manner. He is not a representative earlier. At best, he can claim to be called a candidate or a potential representative. The theory that before he becomes a representative he should have some nexus other than one prescribed by the law in force is not palatable and not supported by any law or view taken in any case. [98-F-Gl 11. 6.

Article 80(4) is not being correctly read by the petitioners. The suggestion that the expression 'representative of each State' implies a condition of residence or other link with the States to be represented ignores the importance of the expression "in" preceding the expression "the Council ;. of States". Article 80(4) does not say that representative of each State to be elected must first be a representative of the State before election. To read this requirement into Article 80(4) would do violence to the words and would be grammatically incorrect. In the provision contained in Article 80(4), thus put in the active voice, the emphasis is on 'who elects'. In the existing passive form, the emphasis is on how the representatives would be elected. The result, either way, is the same. Article 80(4) deals with the manner of election and nothing more.

Therefore, the words "representative of each State" only refers p to the members and do not import any further concept or requirement of residence in the State. (105-C-D; F-GI • 11. 7. Undoubtedly, Section 6 of the 1951 Act continues to require domicile within the State as a necessary qt•alification for a person seeking to be elected as a member of Legislative Assembly or the Legislative Council of the State. But, in view of the law laid down by this Court in the case ofG. Narayanaswamy, no good reason is found to make a departure therefrom, there is no merit in the plea that the "representative of the State" elected by the legislative assembly of the State must also be an ordinary resident of the State just because the electorate that is electing him are required by law to be so. [97-D-El KULDIPNAYAR v. U. 0. 1. 19 G. Narayanaswami v. G. Pannerselvam & Ors. , 119721 3 SCC 717, followed. 12. The argument that the constitutional recognition giver.

to the territorial link between the member of the Council ofStates(as representing the particular State in the Council ofStates) and his position as a registered elector in any Panchayat or Municipal area in that State for purposes of local bodies reinforced plea that the insistence on local residence within particular state for representatives of the State in the Council of States was part of the Constitution Scheme found to be devoid of merit for several reasons as follows: (i) First and foremost is that the provisions under Article 243 of the Constitution are not exceptional in relation to a member of the Council of States on account of his position as a registered elector in any or Municipal area in that State for purposes of local bodies. They equally apply to the members ofthe House of the People and the Legislative Assemblies (as indeed, the Legislative Councils) of the State concerned.

(ii) These provisions are part of the scheme of local self-government engrafted in the Constitution, the object sought to be achieved thereby being to provide a linkage between the local bodies and the legislature at the State and Union levels. The purpose sought to be achieved is to give to the Members of State Legislature and the Parliament access to the grass-root level, equipping them with knowledge about local problems, issues, opinions and aspirations, thereby strengthening democracy. The enabling provisions may not have uniform application. Their effect would depend on the provisions enacted or to be enacted by the respective State Legislatilres for each State. The enabling provisions, themselves make it abundantly clear that the claim oHhe members of the State or Union Legislature for representation in the Panchayat or municipality depends on various factors that may or may not exist vis-a-vis each such member.

The enabling provisions generally provide for the qualifications ofvarious categories of persons, which happen to include the members of the Council of States, to be representatives in a Panchayat or municipality, and share in local self governance. Since the members of the Council ofStates are one of the several sources being tapped for the purpose of providing for representation of different interest groups in the deliberative wing at the local level, it was incumbent to lay down some method ofselection. (iii) Last, but not the least, the provisions that have been referred are Constitutional provisions.

Even on the premise that in enacting them the factor of registration as elector within a particular Panchayat or municipal area was considered important in relation to the members of the Council ofStates so as to give them the additional responsibility of representation in the local Panchayat or municipality, it cannot be said that these provisions add the requirement of domicile to the qualifications for membership in the Council ofStates. There is no such express Constitutional provision prescribing such additional qualification. 199-F-G-H; 100-A-H; IOI-Al 13. 1. Even in countries where strict federalism exists, with the passage of time, the original role of the Senate of guarding interests of the States as political units has largely disappeared. With globalization, the US Senate now functions as a national institution rather than as a champion of local interests. 1102-GI 13. 2.

The concepts of the words 'residence' and 'representative' are not fixed concepts, therefore, they have to change with time. The constitutional framers have kept that flexibility in mind, they have left it to the Parliament to decide the qualification for membership of the Parliament and, while deciding the qualification, the Parliament has to take into account the contextual scenario. There cannot be one uniform, consistent and internal definition or connotation of these concepts. These concepts undergo changes ? with the passage of time. They cannot be decided etymologically by reference to dictionaries. 1103-A-BI 13. 3. The words "ordinarily'"and "resident" have been used together in other statutory provisions as well and as per the Law Lexicon they have been construed as not to require that the person should be one who is always resident or carries on business in the particular place.

The expression coined by joining the two words has to be interpreted with reference to the point of time requisite for the purposes of the provision, in the case of Section 20 of RP Act, 1950 it being the date on which a person seeks to be registered as an elector in a particular constituency. Thus, residence is a concept that may also be transitory. Even when qualified by the word "ordinarily" the word "resident" would not result in construction having the effect of a requirement of the person using a particular place for dwelling always or on permanent uninterrupted basis. Thus understood, even the requirement of a person being "ordinarily resident" at a particular place is incapable of ensuring nexus between him and the place in question. 1104-B-D-EI Cicutti v. Suffolk Counlly Council, 119801 3 All. ER 689, referred to. 3. 4. The nexus between the candidate and the State from which he gets KULDIPNAVAR v. U. 0. 1.

21 elected to fill a seat in the Council ofStates is provided by the perception and vote of the elected Members of the Legislative Assembly who consider him (necessarily an Indian Citizen) as best qualified to further the interests of the State in Parliament. 1104-FI 13. 5. When voting for a candidate in an election, perception of his skills as a legislator, his knowledge of State affairs, his services to the constituency he seeks to represent and the satisfaction or confidence in having him as the representative of the electorate are enough considerations or qualifications. These considerations undoubtedly are certainly of more weight than transitory or often illusory concept of"residence". 1104-GJ 13. 6.

Our electoral system needs to be rendered free from all known vices and so there is no reason why Parliament should be denied the opportunity to bring in such legislation as is deemed by it, in its wisdom, as would plug the possible holes of abuse, for which Parliament has the necessary legislative competence. 1105-BI 14. 1. There may be a separate machinery available under the RP Act, ,,. 1950 to question and inquire into the correctness of the entry of the name of an individual in the electoral roll of a particular constituency, a remedy distinct from that of an election petition to challenge the election of the candidate declared to have been _returned in an election, but this fact cannot lead to the conclusion, by any stretch of reasoning, that the removal of the domiciliary requirement from the qualifications for membership ofParliament is opposed to law or common sense. 1108-H; 109-A-B) Hari Prasad Mulshanker Trivedi v. V. B. Raju & Ors. • ! 19N) 3 SCC 415, distinguished. 14. 2.

The Constitution has not made it a requirement that a person chosen to represent a State in the Council of States must necessarily be a voter in that State itself. The Constitution, after prescribing certain qualifications and disqualifications, has left it to the Parliament to provide other such qualifications or disqualifications. 1110-FJ 14. 3. The provisions under Articles 80(4) and 327 of the Constitution leave no room for doubt that the Constitution recognized the need for changes in the law relating to elections from time to time and entrusted Parliament with the responsibility, as also the requisite power, to bring in legislative measures as and when required in such regard, which would include the power to amend the existing measures. 1115-C-DI Hari Prasad Mu/shanker Trivedi v. V. B. Raju & Ors. , I1974) 3 SCC 415: 1197411 SCR 548, followed. 14. 4.

Parliament has the power, rather an exclusive one, under Article 246 to make laws with respect to any of the matters enumerated in the Union List of the Seventh Schedule. In exercise of the powers conferred on it under Article 246 read with Articles 84 and 327 and Entry 72 of the Union List of the Seventh Schedule to the Constitution, it is a matter for Parliament to decide by making law as to what qualifications "other" than those prescribed in the Constitution be made compulsory to be fulfilled by persons seeking to fill seats in the Council of States as representatives of the States. The Constitution does not put ;rny restriction on the legislative powers of the Parliament in this regard.

If the Constitution had intended that the "representatives" of the States must be residents of the State or must have a link or nexus with the State from where the representatives are chosen, such a provision would have been expressly made in this context as has been done in respect of requirement of age and citizenship. In the absence of such express requirement, the requirement of residence or any other nexus as a matter of qualification cannot be read into Article 80 or 84 of the Constitution. (115-F, G, H; 116-C; DI 14. 5. The fact that a candidate needs to be enrolled in any parliamentary constituency in India does not deprive him ofthe locus to be the representative of the State simply on the ground that he is not enrolled there. (116-EJ 14. 6.

The argument that once the Parliament prescribes a qualification, it cannot revoke or repeal it, can not be accepted as there is no such limitation on Parliament's legislative power, which is confirmed by Entry 72 of the Union List in the Seventh Schedule. The language of Clause (c) of Article 84 creates a power and not a duty. If it is not bound to prescribe any additional qualification, it is also not bound to provide a substitute for the one done away with. 1118-FJ 14. 7. The thrust of the argument of the petitioners is that 'outsider' would be given preference to an 'insider' in the election to the Council of States. This need not be invariably the end result, since outcome of an election would depend on the choice of the Electoral College, the legislative assembly of the State, than on any other factor. In any event, even ifan 'outsider' is selected, it is too far-fetched to contend that the "character" of the House KULDIPNAYAR v. U. 0. 1. 23 would consequently stand altered.

What has been essentially done by the amendment is to provide that even a person registered as an elector outside the State can contest the election to the Council of States from that State. The choice of the electors has been widened and expanded by making this provision. 1118-G-H; 119-AI 15. The Statement of Objects and Reasons ofa proposed legislation is not the compendium of all possible reasons or justification. No contradiction has been found in the stand taken by the Union of India in these proceedings in relation to the Statement of Objects and Reasons of the impugned amendment. (112-G] 16. Even without going into the debate as to whether right to vote is . itatutory or Constitutional right, the right to be elected is indisputably a statutory right, i. e. , the right to stand for elections can be regulated by law made by Parliament.

It is pure and simple a statutory right that can be created and taken away by Parliament and, therefore, must always be subject to statutory limitations. (116-GI People's Union For Civil Liberties & Anr. v. Union of India & Anr. , -t (20031 4 SCC 399; N. P. Ponnuswami v. Returning Officer, Namakkal Constituency & Ors. , (19521SCR218; Joseph Theberge & Anr. v. Phillippe Laudry, (1876) 2 AC 102; Hari Prasad Mulshanker Trivedi v. V. B. Raju & Ors. , [197413 SCC 415 and Jyoti Basu v. Debi Ghosal, (198211 SCC 691, relied on. 17. 1. The impugned amendment would not make Section 3 ofR. P. Act, 1951 nugatory. Whilst Article 84 prescribes citizenship of India as qualification for membership, Section 3, after the amendment, restricts qualification of member of Council of States to an elector who is resident in India. This would exclude non-resident Indian citizens. This is also a ~ significant restriction.

It is, therefore, clear that Section 3 continues to provide a qualification for membership of the Council ofStates. (119-C-DI 17. 2. It is important to note that, even after the amendment, (i) the electors remain the same, namely the State Assemblies; (ii) the elected persons remain representatives of the State; and (iii) the choice and the decision as to whom to elect continues to be with the State Legislative Assemblies. (119-E-F) 17. 3. The field of consideration before the State Assembly is enlarged. But the ultimate choice and decision is always that of the State Legislatures. Therefore, if they decide to elect a person who is not ordinarily a resident of the State they would do so with the full knowledge of all circumstances and it would be their decision as to who should be the representative of their State. This, by no stretch of reasoning, can be said to be an abdication of the Parliament's obligations or functions. 1119-F-GI 17. 4.

The impugned amendment to Section 3 of the RP Act, 1951 cannot be assailed as unconstitutional. It passes muster in view of legislative competence. It does not transgress the provisions of Part III of the Constitution, nor for that matter any other provision, express or implied, of the Constitution. 1120-B] 18. 1. Through the impugned amendments a proviso each has been added to Sections 59, 94 and 128 of the R. P. Act, 1951. These amendments have carved out an exception to the general rule of secrecy for purposes of the elections for filling up a seat in the Council of States, which is now to be held "by open ballot", thus no longer subject to the principle ofsecret ballot. 1120-FI 18. 2. It has been authoritatively held, time and again, by this Court that democracy is a basic feature of the Constitution of India, one that is not amenable to the power ofamendment ofthe Parliament under the Constitution.

It has also been the consistent view of this Court that the edifice ofdemocracy in this country rests on a system of free and fair elections. These principles are discernible not only from the preamble, which has always been considered as part of the Constitution, but also from its various provisions. 1124-G-HI Kesavananda Bharati Sripadaga/varu v. State ofKera/a & Anr. , 119731 4 sec 225, followed. 18. 3. There can be no doubt about the fact that democracy is a basic feature of the Constitution of India and the concept of democratic form of Government depends on a free and fair election system. (129-GI - S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, [1980] Supp. SCC 53; Kihoto Hollohan v. Zachillhu & Ors. , (1992) Supp. 2 SCC 651; P. V. Narasimha Rao v. State (CBIISPE), 119981 4 SCC 626; Union of India v. Association for Democratic Reforms & Anr. , 1200215SCC294 and People's Union For Civil Liberties & Anr. v. Union ofIndia & Anr. , 1200314 SCC 399, relied on. KULDIPNAYAR v. U.

0. 1. 25 18. 4. There is no basis to contend that the right to vote and elect representatives of the State in the Council of States is a Constitutional right. Article 80 (4) merely deals with the manner of election of the representatives in the Council of States as an aspect of the composition of the Council of States. There is nothing in the Constitutional provisions declaring the right to vote in such election as an absolute right under the Constitution. 1135-F-GI Jyoti Basu v. Debi Ghosal, 1198211 SCC 691, relied on. 19. 1. It is the elected members of the Legislative Assembly who constitute, under Article 80 the Electoral College for electing the representative of the State to fill the seat allocated to that State in the Council ofStates. It is not the entire Legislative Assembly that becomes the Elecfaral College, but only the specified category of members thereof.

When such members assemble at a place, they do so not to discharge functions assigned under the Constitution to the Legislative Assembly. Their participation in the election is only on account of their ex-officio capacity ofvoters for the electi(ln. Thus, the act of casting votes by each ofthem, which also need not occur with all of them present together or at the same time, is merely exercise of franchise and not proceedings of the legislature. 1139-F-G-HI 19. 2. It is not without significance that, barring the exception in case of independents, which are few and far between, experience has shown that it is the political parties that mostly set up the members of legislatures at the Centre or in the States.

One can also refer to the nomination papers prescribed under the Conduct of Election Rules, 1961 for election to the Council of States, being Form 2-C, or for election to the State Legislative Assembly, being Form 2B, each of which require a declaration to be made by the candidate as to particulars of the political party that has set him up in the election. This declaration binds the elected legislators in the matter of allegiance to the political party in all matters including the support of the party to a particular candidate in election to the Council of States. Yet, in view of the law laid down in Kihoto Hallahan v. Zachil/hu & Ors. , it is not correct to contend that the open ballot system tends to expose the members of the Legislative Assembly to disqualification under the Tenth Schedule 5ince that part of the Constitution is meant for different purposes. 1146-A-B-C-DI Kihoto Hallahan v. Zachillhu, 119921 Supp. 2 SCC 651, relied on. 19. 3.

Universal Declaration of Human Rights through Article 21 and International Convention on Civil and Political Rights through Article 25 provide for formation ofa Government through secret ballot Prime importance r is given in these two Human Rights instruments on "will of the electors" giving basis to the authority ofGovernment It may however be noticed that in Article 21 of Universal Declaration of Human Rights the requirement is satisfied not necessarily by secret ballot but even "by equivalent free voting procedures". [147-E-Fl 19. 4. Even under the elections that continue to be based on principle of secrecy of voting, it is for the voter to choose whether he wishes to disclose for whom he had voted or would like to keep the secrecy intact. If he so chooses, he can give up his privilege and in that event, the secrecy of ballot should yield.

Such an event can also happen if there is fraud, forgery or other illegal act and the disclosure sub-serves the purpose of administration of justice. [152-EI S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, [19801 Supp. SCC 53, referred to. Queen v. Beardsa/l, LR (1875-76) 1 QB 452, referred to. 19. 5. The submission of the Petitioner that a right to vote invariably carries as an implied term, the right to vote in secrecy, is not wholly correct. Where the Constitution thought it fit to do so, it has expressly provided for elections by secret ballot. It is apt to point out that unlike silence on the subject in the case of provisions of the Constitution concerning ele~tion to fill the seats of the representatives of States in the Council of States, Articles 55(3) and 66(1), that relate to the manner ofelection for the offices of the President and the Vice President respectively, provide for election by "secret ballot". [156-G-H; 157-A) A. Neelalohithadasan Nadar v.

George Mascrene & Ors. , [19941 Suppl. 2 sec 619, relied on. ;. 19. 6. lfthe right to vote by itself implies or postulates voting in secrecy, ... :::: then Articles 55(3) and 66(1) of the Constitution would not have required inclusion of such words. The necessity for including the said condition in the said Articles shows that "secret ballot" is not always implied. It is not incorporated in the concept ofvoting by necessary implication. It follows that for 'secret ballot' to be the norm, it must be expressly so provided. To read into Article 80(4) the requirement ofa secret ballot would be to read the words "and the voting at such election shall be by secret ballot" into the provision. To do so would be against every principle of Constitutional and statutory KULDIPNAYAR v. U. 0. 1. 27 construction. Thus, from this angle, it is difficult to hold that there is Constitutional infirmity in providing open ballot system for the Council of States. [157-C-D-EI 19. 7.

Where the law on the subject is silent, Article 324 is a reservoir of power for the Election Commission to act for the avowed purpose of pursuing the goal of a free and fair election, and in this view it also assumes the role of an adviser. But the power to make law under Article 327 vests in the Parliament, which is supreme and so, not bound by such advice. [157-H; 158-AI 1 Mohinder Singh Gill v. ChiefElection Commissioner, 1197811 SCC 405, referred to. 19. 8. The privilege to keep the vote secret is that of the elector who may choose otherwise; that is to say, he may opt to disclose the manner in which he has cast his vote but he cannot be compelled to disclose the manner in which he has done so, except in accordance with the law on the subject which ordinarily comes into play only in case the election is challenged by way ofelection petition before the High Court. [162-B-q 19. 9.

The effect of the amended Rules, thus, is that in elections to the " Council of States, before the elector inserts the ballot paper into the ballot box, the authorized agent ofthe political party shall be allowed·to verify as to whom such an elector casts his vote. In case such an elector refuses to show his marked ballot paper, the same shall be taken back and will be cancelled by the Presiding Officer on the ground that the voting procedure had been violated. There is, therefore, a compulsion on the voter to show his vote. But then, the above rules are only in furtherance ofthe object sought to be achieved by the impugned amendment. Rather, the rules show, the open ballot system put in position does not mean open to one and all. It is only the authorized agent of the political party who is 11llowed to see and verify as to whom such an elector casts his vote. The prerogative remains with the voter to choose as to whether or not to show his vote to the authorized agent of his party.

(182-F-G-HI ':; 19. 10. Voting at elections to the Council of States cannot be compared with a general election. In a general election, the electors have to vote in secret manner without fear that their votes would be disclosed to anyone or would result in victimization. There is no party affiliation and hence the choice . is entirely with the voter. This is not the case when elections are held to the ~ Council of States as the electors arc elected members of the legislative r assemblies who in turn have party affiliations. [163-A-B[ 20. l. The right to vote in 'free and fair elections' is always in terms of an electoral system prescribed by national legislation. The right to vote derives its colour from the right to 'free and fair elections'; that the right to vote is empty without the right to 'free and fair elections'. It is the concept of 'free and fair elections' in terms ofan electoral system which provides content and meaning to the 'right to vote'.

In other words, 'right to vote' is not an ingredient of the free and fair elections. It is essential but not the necessary ingredient. [167-F-GI ~ Judd v. Mckeon, (1926) 38 CLR 380; King v. James, (1972) 128 CLR 221 and New National Party ofSouth Africa v. Government ofthe Republic a/South Africa & Anr. , (1999) 3 SA 191, referred to. "Australian Constituitonal law" 2nd Edition by Fajgenbaum and Hanks, referred to. 20. 2. It is evident that the right to vote is a concept which has to yield to a concept ofthe attainment offree andfair elections. The nature of elections, namely, direct or indirect, regulates the concept of right to vote. Where • elections are direct, secret voting is insisted upon. Where elections are indirect and where members are chosen by indirect means, such as, by parliament or by legislative assembly or by executive, then open ballot can be introduced as a concept under the electoral system of voting.

In the case of direct elections, members are chosen directly by popular vote which is not the case under indirect elections. Therefore, it cannot be said that the concept of open ballot would defeat the attainment of free and fair elections. [175-D-E-F[ "Australian Constitutional law" (2nd Edition), referred to. 20. 3. It cannot be forgotten that the existence of political parties is an essential feature of our Parliamentary democracy and that it can be a matter of concern for Parliament if it finds that electors were resorting to cross voting under the garb of conscience voting, flouting party discipline in the ~ . name of secrecy of voting. This would weaken the party discipline over the errant Legislators. Political parties are the sine qua non of Parliamentary democracy in our country and the protection of party discipline can be introduced as an essential feature of the purity of elections in case of indirect ) ~ KULDIPNAYAR v. U. 0. 1. 29 , elections. (175-G-H; 176-A( 20. 4.

The distinguishing feature between 'constituency-based representation' and 'proportional representation' in a representative democracy is that in the case of proportional representation, members are elected on party lines. They are subject to party discipline. They are liable to be expelledfor breach ofdiscipline. Therefore, to give effect to the concept of proportional representation, Parliament can suggest 'open ballot'. Jn such a case, it cannot be said that 'free and fair elections' would stand defeated by 'open ballot'. (180-E-Ff ; United Democratic Movement v. President of the Republic of South Africa and Ors. , (2003) 1 SA 495 and King v. James, (1972) 128 CLR 221, referred to. 20. 5. Every vote on a motion inside the House is by an open ballot. The election of a Speaker, Deputy Speaker of the House of the People and the Deputy Chairperson of the Council ofStates is by a division which is a system of open ballot.

Reference may be made in this respect to Rules 7, 8, 364, 365, 367, 367A, 367AA and 3678 of Rules of Procedure and the Conduct of Business in the Lok Sabha and Rules 7, 252, 253 and 254 of Rules of Procedure and Conduct of Business in the Council of States. Hence, the -t justification of the impugned amendment on the reasoning that open voting eradicates the evil of cross-voting by electors who have been elected to the Assembly of the particular State on the basis of party nomination cannot be lightly brushed aside. (180-H; 181-A-B) 20. 6. The contention that the right of expressio~ of the voter at an election for the Council ofStates is affected by open ballot is not tenable, as an eleded MLA would not face any disqualification from the Membership of the House for voting in a particular manner. (181-E] 20. 7. Since the amendment has .

been brought in on the basis of need to avoid cross voting and wipe out evils of corruption as also to maintain the integrity of our democratic set-up, it can also be justified by the State as a reasonable restriction under Article 19(2) of the Constitution, on the assumption that voting in such an election amounts to freedom of expression under Article 19(1)(a) of the Constitution. (181-F-G] 20. 8. There can be no denial of the fact that the manner of voting in the election to the Council of States can definitely be regulated by the Statute. The Constitution does not provide that voting for an election to the Council of . ) States shall be by secret ballot. The voting for an election to the Council of . if States till now was by secret ballot due to a law made by Parliament. It cannot be said that secret ballot in all forms of elections is a Constitutional right. 1181-H; 182-Al N. P. Ponnuswami v. Returning Officer, Namakkal Constituency & Ors.

, (1952) SCR 218 and People's Union/or Civil Liberties (PUCL) v. Union of India & Anr. , [1997) 1 sec 301, referred to. 20. 9. By the impugned amendment, the right to vote is not taken away. Each elected Member of the Legislative Assembly of the concerned State is fully entitled to vote in the election to the Council of States. The only change \ that has come owing to the impugned amendment is that he has to disclose the way he has cast the vote to the representative of his Party. Parliament would justify it as merely a regulatory method to stem corruption and to ensure free and fair elections and more importantly to maintain purity of elections. [182-B-CI 20. 10. Amulti party democracy is a necessary part ofthe basic structure of the Constitution. An amendment to law intended to restore popular faith in parliamentary democracy and in the multi party system cannot be faulted. 1182-F) ,. 20. 11. The principle of secrecy is not an absolute principle.

The legislative Amendment cannot be struck down on the ground that a different or better view is possible. It is well settled that a challenge to Legislation cannot be decided on the basis of there being another view which may be more reasonable or acceptable. A matter within the legislative competence of the legislature has to be left to the discretion and wisdom of the latter so long as it does not infringe any Constitutional provision or violate the Fundamental rights. 1182-G) 21. The secrecy of ballot is a vital principle for ensuring free and fair elections. The higher principle, however, is free and fair elections and purity ofelections. If secrecy becomes a source for corruption then transparency have the capacity to remove it. The Legislation pursuant to a legislative policy that transparency will eliminate the evil that has crept in would hopefully serve the larger object of free and fair elections. (182-H; 183-AI CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No.

217 of2004. (Under Article 32 of the Constitution of India. ) WITH KULDIPNAYAR v. U. 0. 1. [SABHARWALC. I. ] 31 'j Writ Petition (C) Nos. 262, 266 and 305 of2004. Rajinder S11cher, F. S. Nariman, Sanjay Parikh, A. N. Singh, Pawan Kumar, P. H. Parekh, Subhash Shanna, Shakum Sharma, Mary Mitzy, Ranjeeta Rohatgi (for Mis P. H. Parekh & Co. ), Charania! Shau, In-Person, Ajay K. Agrawal, Alka Agrawal and Anamika Agarwal for the Petitioner. Milon K. Banerjee, A. G. , G. E. Vahanvati, S. G. , Aruneshwar Gupta, A. A. G. , D. P. Singh, A. A. G. , J. S. Attri, A. A. G. , Avatar Singh Rawat, A. A. G. , Ram Jethmalani, Md. Yusuf, Arun Jaitley, P. P. Rao, Dr. R. G. Padia, K. Radhakrishnan, Gaurav Agarwal (for Attomery General of India), Naveen Kumar Singh, Avneet Toor, Sanjay Jain, Arun K.

Sinha, Rajshekhar Rao, Indra Sawhney, Anil Katiyar, Vimla Sinha, Gopall Singh, Rituraj Biswas, Hemantika Wahi, Pinky Behera, Janaranjan Das, Swetaketu Mishra, Kshyama Singh, Kamini Jaiswal, Tara Chandra Sharma, Neelam Sharma, Rajeev Sharma, Ajay Sharma, Rupesh Kumar, D. Bharathi Reddy, P. Vinay Kumar, Sneha Bhaskaram (for T. V. Ratnam), S. Muralidhar, Amit Sharma, A. Mariarputham, Aruna Mathur (for M/s. Arputham, Aruna & Co. ), Ranjan Mukherjee, B. S. Banthia; Ila Kapur, Abhinav Mukherjee, Pooja Mahajan, Neoma Vasdev, Khwairakpam Nobin Singh, Anil Shrivastav, Saurabh Srivastava, Sanjay R. Hegde, Subromonium Prasad, Gopalakrishnan, 't R. , Abhay Kumar, Jai Kishore, K. Ramesh, Garvesh Kabra, Anuvrat Sharma. (for Praveen Swamp), Ravi P. Mehrotra, Bina Madhavan (for M/s. Lawyer's Knit & Co. ), V. K. Sidharthan, J. R. Luwang (for M/s. Corporate Law Group), Suparna Srivastava, Deepti Singh, Rajesh Srivastava, Upamanyu Hazarika, Satya Mitra, Sumita Hazarika, S. Ravi Shankar, R.

Yamunah Nachiar, Hemanandhini Deori, Lesi, A. Subhashini, Navin Prakash, S. W. A. Qadri, Devadatt Kamat, Hrishikesh Baruah, Chinmoy Pradip Sharma, Suruchi Suri, D. S. Mahra, Gopal Prasad (for Anil Kumar Jha), Jatinder Kumar Bhatia, K. N. Madhusoodhanan, R. Sathish, Intervenor-In-Person (I. A. No. 4) (N. P. ), S. S. Shinde and V. N. Raghupathy for the Respondents. ~ The Judgment of the Court was delivered by Y. K. SABHARWAL, CJ. Background By this writ petition under Article 32 of the Constitution of India, petitioner seeks to challenge amendments made in the Representation of People Act, 1951 (for short, 'the RP Act', 1951') through Representation of People (Amendment) Act 40 of2003 which came into force from 28th August, 2003. By the said Amendment Act 2003, the requirement of"domicile" in the State concerned for getting elected to the Council of States is deleted which ~, ... according to the petitioner violates the principle of Federalism, a basic structure of the Constitution.

In the writ petition, there is a further challenge to the amendments in Sections 59, 94 and 128 of the RP Act, 1951 by which Open Ballet System is introduced which, according to the petitioner, violates the principle of 'secrecy' which, according to the petitioner, is the essence of free and fair elections as also the voter's freedom of expression which is the basic feature of the Constitution and the subject matter of the fundamental right under Article I9(1 )(a) of the Constitution. Text of the Statute before the Amending Act 40 of 2003 From 1951 upto 2003, Sections 3, 59, 94 and 128 as originally stood were as follows: "3. Qualification for membership ofthe Council ofStates. -A person shall not be qualified to be chosen as a representative of any State or Union territory in the Council of States unless he is an elector for a Parliamentary Constituency in that State or territory. 59. Manner ofvoting at elections.

-At every election where a poll is , taken votes shall be given by ballot in such manner as may be prescribed and no votes shall be received by proxy. 94. Secrecy ofvoting not to be infringed. No witness or other persons shall be required to state for whom he has voted at an election. 128. Maintenance ofsecrecy ofvoting. -{)) Every officer, clerk, agent or other person who performs any duty in connection with the recording or counting of votes at any election shall not (except for some purposes authorized by or under any law) communicate to any person any information calculated to violate such secrecy. (2) Any person who contravenes the provisions of sub-section (I) shall be punishable with imprisonment for a term which may extencl to three months or fine or witn both. " By Representation of People (Amendment) Act, 2003, (Act No. 40 of 2003), in Section 3 for the words 'in that state c,rterritory', the words 'in India' were substituted.

In Sections 59, 94 and 128, following provisos were inserted at the end. "59. Provided that the votes at every election to fill a seat or seats ,~ in the Council of States shall be given by open ballot. • KULDIPNAYAR v. U. 0. 1. [SABHARWAL, C. I. ] 33 , 94. Provided that this Section shall not apply to such witness or other person where he has voted by open ballot. 128. Provided that the provisions of this sub-section shall not apply to such officer, clerk, agent or other person who performs any such duty at an election to fill a seat or seats in the Council of States. " Issues Two issues arise for determination in this case. The first issue relates } to the content and the significance of the word 'domicile' whereas the second issue deals with importance of the concept of 'secrecy' in voting under the constitutional scheme.

Broad framework of the Constitution The Constitution of India provides for the Union Legislature, called "Parliament", through Article 79, to consist of the President and two Houses to be known respectively as the "Council of States", also known as the Rajya Sabha and the "House of the People", also known as the Lok Sabha. There i is a similar provision in Article 168 for the State Legislature, which, besides the Governor of the State, includes a "Legislative Assembly', also known as the Vidhan Sabha in each State and "Legislative Council", also known as the Vidhan Parishad, in some of the States. In the Union Legislature, i. e. , the Parliament, the Council of States, consists of (not more than) 250 members, out of whom 12 are nominated by ,- the President in accordance with Article 80(3), the remaining 238 being "representatives of the States and of the Union Territories".

The Fourth Schedule to the Constitution sets out the allocation of seats in the Council of States to be filled by such representatives of the States and of the Union .. I Territories. Article 80(4) provides that "the representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote". Article 80(5) further provides that representatives of the Union Territories in the Council of States shall be chosen in such manner as Parliament may by law prescribe. Article 84 is styled as a provision to indicate "Qualification for ... membership of Parliament". In clauses (a) and (b), Article 84 makes it incumbent for any person seeking to be chosen to fill a seat in Parliament to be a citizen of India and of a certain age, which in the case of a seat in the Council of States cannot be less than 30 years.

Article 84(c) provides that a candidate seeking to be elected as a Member of Parliament must "possess such other qua! ifications as may be prescribed in that behalf by or under any law made by Parliament". Part XV ofthe Constitution pertains to the subject matter of"Elections". It includes, presently, Articles 324 to 329. The superintendence, direction and control of elections vests in the Election Commission. Article 327 confers, on the Parliament, the power, subject to the provisions of the Constitution, to make, from time to time by law, provisions with respect to "all matters relating to, or in connection with, elections", inter alia, "to either House of Parliament", including "the preparation of electoral rolls, the delimitation of the constituencies and all matters necessary for securing the due consideration of such House or Houses". Part XI of the Constitution pertains to the "Relations between the Union and the States".

Chapter I of Part XI is in respect of "Legislative Relations". Article 245 generally states that the Parliament, subject to the provisions of the Constitution, may make laws for (he whole or any part of the territory of India. Article 246 vests in the Parliament "the exclusive power" to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule ("Union List", hereafter). The Union List, as given in the Seventh Schedule includes Entry No. 72, which relates to, amongst others, the "Elections to Parliament". History of RP Acts, 1950 and 1951 In the year 1952, the Parliament came to be duly constituted and summoned to meet for the first session under the provisions ofthe Constitution. Till then, the Constituent Assembly, which had prepared and adopted the Constitution, functioned as the Provisional Parliament, in accordance with the provision contained in Article 379.

It may be added here that after the first General Elections had led to the two Houses of Parliament being constituted, Article 379, having served its purpose, was deleted by Constitution (Seventh Amendment) Act, 1956 with effect from 1st November, 1956. The Provisional Parliament, in exercise of its authority under Article 379 read with aforementioned enabling provisions, enacted a law called the KULDIPNAYAR v. U. 0. 1. [SABHARWAL. C. 1. ] "Representation ofthe People Act, 1950" (the RP Act, 1950), which came into force with effect from 12th May, 1950. This law had been enacted to provide for "the allocation of seats in and the delimitation of constituencies for the purpose of election to, the House of the People and the Legislatures of States, the qualifications of voter at such elections, the preparation of electoral rolls, and matters connected therewith".

It must be mentioned here that the subject matter relating to "the manner of filling seats in the Council of States to be filled by the representatives of Part-C States (later "Union Territories") was inserted in this law by way of Act 73 of 1950 (to be read with the Adaptation } of Laws (No. 2) Order, 1956) which, among others, added Part IVA to the RP ' Act, 1950. The RP Act, 1950 did not contain all the provisions relating to elections. Provisions for the actual conduct of elections, amongst others, to the Houses of Parliament, the qualifications for the membership of such Houses etc. had been left to be made in subsequent measures. In order to make provisions for such other subjects, the Provisional Parliament, in exercise of its authority under Article 379 read with aforementioned enabling provisions, enacted the RP Act, 1951, which was brought into force with effect from 17th July, 1951.

Chapter I of Part II of the RP Act, 1951 related to "Qualifications for membership of Parliament". It includes two sections, namely Sections 3 and 4. We are not much concerned with Section 4 inasmuch as it pertains to qualifications for membership of the House of the People. Section 3 of the RP Act, 1951, in its original form is the main bone of contention here. Section 3 of the RP Act, 1951, as originally enacted, read as under: "3. Qualification for membership of the Council of States. -{! ) person shall not be qualified to be chosen as a representative of any Part A or Part B State (other than the State of Jammu and Kashmir) .. l in the Council of States unless he is an elector for a Parliamentary :=> constituency in that State. (2) A person shall not be qualified to be chosen as a representative of the States of Ajmer and Coorg or of the States of Manipur and Tripura in the Council of States unless he is an elector for any Parliamer.

tary constituency in the State in which the election of such representative is to be held. (3) Save as otherwise provided in sub-section (2), a person shall not -· ... r be qualified to be chosen as a representative of any Part C St The key question is whether residence was ever treated as constitutional requirement under Article 80(4). In re: Special Reference No. I of 2002 (2002) 8 sec 237, it was observed that: "One of the known methods to discern the intention behind enacting a provision of the Constitution and also to interpret the same is to look into the historical legislative developments Constituent Assembly Debates, and in the enactment preceding the enactment of the _,;a Constitutional provisions. " (ii) legislative Hist01y The Constitution has established a federal system of Government with bi-camera! legislature at the Centre which is not something which was grafted in the Constitution for the first time.

Its history goes back to Government of India Act, 1915 as amended in 1919. Even under the Government of India Act, 1919, the qualification of residence in relation to a particular constituency was considered to be unnecessary. This position is indicated by Rule XI of the then Electoral Rules. This position is also indicated by the provisions of the Government of India Act, 1935 under which the Legislature at the Centre was bi-camera!. The Lower Chamber was called 'House of Assembly'. The Upper Chamber was called 'Council of States'. Under the Government of India Act, 1935 (for short, the 'GI Act'), the Council of States was a permanent body with one-third of its members retiring every third year. Sixth Schedule to the GI Act made provisions for franchise. Part I of that Schedule contained qualifications. It did not include residence as a qualification of the elector.

However, there were other parts to the Sixth Schedule which dealt with certain subjects exclusive for different provinces in which there was a requirement of residence. This was under the heading 'general requirements'. However, there was no uniformity. In certain cases, residence was prescribed as a qualification (for example in the case of Central Provinces, Berar and Bengal) whereas in provinces, namely, Assam, the qualification was 'a family dwelling place or a place where the elector ordinarily resided'. Therefore, the qualification of residence was not uniform. It depended upon local conditions. It deferred from province to province. At this stage, we may clarify that under strict federalism, the Lower House represents 'the people' and the Upper House consists of the 'Union' of the Federation. In strict federalism both the Chambers had equal legislative and financial powers. However, in the Indian context, strict federalism was not adopted.

- The Council of State under the GI Act became Council of States under the Constitution of India. This fact is important. In this connection, we have to look into the minutes of the Union Constitution Committee which recorded vide Item 21 the manner of computing weight proportional representation based on population strength. The said minutes further show the recommendation that the Upper House should include scientists, teachers etc. for which purpose, the President should be given authority to nominate. The KULDIPNAYAR v. U. 0. 1. [SABHARWAL CJ. ) 43 necessity of the Upper Chamber was also the subject matter of debate in the Constituent Assembly on 28th July, 1947. These debates indicate the purpose for having the Upper Chamber. The object ofthe Upper Chamber as envisaged was to hold dignified debates on important issues and to share the experience of seasoned persons who were expected to participate in the debate with an amount of learning.

Finally, on 28th July, 1947, a policy decision was taken by the Constituent Assembly that the Federal Parliament shall consist of two chambers. In the first draft Constitution, Fourth Schedule related to the composition of the Federal Parliament. Paragraph I of Part I of the Fourth Schedule dealt with the general qualifications for the members which included citizenship and minimum age of not less than 35 years in the case of a seat in the Council of States. The said paragraph further stated that apart from citizenship and age qualifications, it would be open to the Parliament to describe any other qualification as may be appropriate. Paragraph 6 of Part I of the Fourth Schedule appended to the first draft Constitution provided for the qualification of residence in a State for a candidate to be chosen to the Council of States.

Clause 6il of the first draft Constitution stated that all matters relating to or connected with elections to either House of the Federal Parliament shall be regulated by the Fourth Schedule, unless otherwise provided by the Act of the Federal Parliament. (Emphasis supplied). However, the Fourth Schedule was omitted by the Drafting Committee. This was on I Ith February, 1948. Therefore, with this deletion, the requirement of residence was done away with. The entire discussion with regard to the legislative history is only to show that residence was never the constitutional requirement. It was never treated as an essential ingredient of the structure of the Council of States. It has been treated just a matter of qualification. Further, the legislative history > shows that qualification of residence has never been a constant factor. As the legislative history shows, ownership of assets, dwelling house, income, residence etc.

were considered as qualification from time to time depending upon the context and the ground reality. The power to add qualifications was given to the Federal Parliament. Therefore, the legislative history of constitutional enactments like the GI Act shows that residence or domicile are not the essential ingredients of tlie structure and the composition of the Upper House. )• At this stage, one event needs to be highlighted. The Drafting Committee included a separate chapter under Part Xlll on the subject of 'elections' to the draft Constitution which corresponded to Article 327 in Part XV of the Constitution. Article 290 empowered the Parliament to make laws providing for all matters relating to or in connection with elections to the House of Parliament. Ultimately, despite all objections against bicameral legislature, the Constituent Assembly took the decision to have Federal Parliament consisting of two chambers.

In its report, the Drafting Committee recommended basic qualifications for membership of Parliament being a subject which should be left to the wisdom of the Parliament. Accordingly, the Drafting Committee recommended Article 68A which corresponds to Article 84 in the Constitution. This was the first time when a provision was included to prescribe qualifications which included citizenship and the minimum age subject to any other qualification that may be prescribed by law made by the Parliament. The Drafting Committee justified the inclusion of Article 68A in the following words: "Article 152 prescribes an age qualification for members of State Legislatures. There is no corresponding provision for members of Parliament. There is, moreover, a strong feeling in certain quarters that a provision prescribing or permitting the prescription of educational and other qualifications for membership both of Parliament and ofthe State Legislatures should be included in the Draft.

If any standard of qualifications is to be laid down for candidates for membership it must be so precise that an election tribunal will be able to say, in a given case, whether the candidate satisfied it or not. To formulate precise and adequate standards of this kind will require time. Further, if any such qualifications are laid down in the Constitution itself, it would be difficult to alter them if circumstances so require. The best course would, therefore, be to insert an enabling provision in the Constitution and leave it to the appropriate legislature to define the necessary standards later. Whatever qualifications may be prescribed, one of "· them would certainly have to be the citizenship of India. " To sum up, the legislative history indicates that residence is not a constitutional requirement of clause (4) of Article 80. Residence is a matter of qualification.

Therefore, it comes under Article 84 which enables the Parliament to prescribe qualifications from time to time depending upon the fact situation. Unlike USA, residence is not a constitutional requirement. In the context of Indian Constitution, residence/domicile is an incident of federalism which is capable of being regulated by the Parliament as a KULDIPNAYAR v. U. 0. 1. [SABHARWAL, CJ. ] 45 )' qualification which is the subject matter of Article 84. This is borne out by the legislative history. Composition of Parliament India's Parliament is bicameral. The two Houses along with the President constitute Parliament (Article 79]. The Houses differ from each other in many respects. They are constituted on different principles, and, from a functional point of view, they do not enjoy a co-equal status. Lok Sabha is a democratic chamber elected directly by the people on the basis of adult suffrage. It ·> reflects popular will. It has the last word in matters oftaxation and expenditure.

) The Council of Ministers is responsible to the Lok Sabha. Rajya Sabha, on the other hand, is constituted by indirect elections. The Council of Ministers is not responsible to the Rajya Sabha. Therefore, the role of Rajya Sabha is somewhat secondary to that of Lok Sabha, barring a few powers in the arena of Centre-State relationship. Rajya Sabha is a forum to which experienced public figures get access without going through the din and bustle of a general election which is -~ inevitable in the case of Lok Sabha. It acts as a revising chamber over the Lok Sabha. The existence of two debating chambers means that all proposals and programmes ofthe Government are discussed twice. As a revising chamber, the Rajya Sabha helps in improving Bills passed by the Lok Sabha. Although the Rajya Sabha is designed to serve as a Chamber where the States and the Union of India are represented, in practice, the Rajya Sabha does not act as a champion of local interests.

Even though elected by the State Legislatures, the members ofthe Rajya Sabha vote not at the dktate of the State concerned, but according to their own views and party affiliation. In fact, at one point of time in 1973, a private member's resolution was to the effect that the Rajya Sabha be abolished. ). Composition of Rajya Sabha The maximum strength ofRajya Sabha is fixed at 250 members, 238 of whom are elected representatives of the States and the Union Territories and ~ 12 are nominated by the President. The seats in the Upper House are allotted among the various States and Union Territories on the basis of population, the formula being one seat for each million of population for the first five million and thereafter one seat for every two million population. A slight advantage is, therefore, given to States with small population over the States ,i}I. rf with bigger population. This is called ''weighted proportional representation".

The system of proportional representation helps in giving due representation to minority groups. The representatives of a State in Rajya Sabha are elected by the elected members of the State Legislative Assembly in accordance with the system of proportional representation by means of a single transferable vote [Article 80(l)(b) and A11icle 80(4)]. Rajya Sabha is a continuing body. It has nominated members. They are nominated by the President on the advice of Council of Ministers. There is no difference in status between elected and nominated members of Rajya Sabha except that the elected members can participate in the election of the President whereas the nominated members cannot do so. One-third of its members retire every two years and their seats are filled by fresh elections and nominations.

Rajya Sabha 's power under Article 249 of the Constitution The Indian union has been described as the 'holding together' of different areas by the constitution framers, unlike the 'coming together' of constituent units as in the case of the U. S. A. and the confederation of Canada. Hence, the Rajya Sabha was vested with a contingency based power over state legislatures under Article 249, which contributes to the 'Quasifederal' nature to the government of the Indian union.

Under Article 249(1 ), if the Rajya Sabha declares by a resolution, supported by not less than twothirds of it's members present and voting, that it is necessary or expedient in national interest that Parliament should make laws with respect to any of the matters enumerated in the State list [List II of Seventh Schedule read with Article 246], specified in the resolution, it shall be lawful for parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force. Article 249 clause (2) and (3) specify the limitations on the enforcement of this provision. Article 251 when read with Article 249 provides that in case of inconsistency between law made by parliament under Article 249 and a law made by a State legislature, the Union law will prevail to the extent of such inconsistency or 'repugnancy'.

In effect this provision permits the Rajya Sabha to encroach upon the specified legislative competence of a state legislature by declaring a matter to be of national importance. Though it may have been incorporated as safeguard in the original constitutional scheme, this power allows the Union government to interfere with the functioning of a State government, which is most often prompted by the existence of opposing party-affiliations at the Central and state level. This bias towards 'Unitary power' under nonnal circumstances is not seen either in U. S. A. or Canada. KULDIPNAYAR v. U. 0. 1 (SABHARWAL,CJ. ] Federalism A lot of energy has been devoted on behalf of the petitioners to build up a case that the Constitution of India is federal. The nature of Federalism in Indian Constitution is no longer res integra. There can be no quarrel with the proposition that Indian model is broadly based on federal form of governance. Answering the criticism of the tilt towards the Centre, Shri T.

T. Krishnamachari, during debates in the ,> Constituent Assembly on the Draft Constitution, had stated as follows: "Sir, I would like to go into a few fundamental objections because as I said it would not be right for us to leave these criticism C . uncontroverted. Let me take up a matter which is perhaps partly theoretical but one which has a validity so far as the average man in this country is concerned. Are we framing a unitary Constitution? Is this Constitution centralizing power in Delhi? Is there any way provided by means of which the position of people in various areas could be safeguarded, their voices heard in regard to