KULDIP NAYAR v. UNION OF INDIA AND ORS.

1

AUGUST 22, 2006

~ 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 of 2003/Constitution of India, I950; Articles 19, 55, 66, 80, 249, 25I, c 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 of Procedure and Conduct of Business in the Council of States: Rules 7, 252, 253 and 254: D

A 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 of residence/domicile existed in the 1951 Act, a Statutory B Act, but it was not the constitutional requirement, hence its removal there- from by wizy of the amendment is not unconstitutional and could not be challenged under the provi~ions of Article 368 of the Constitution.

KULDIPNA YAR v. U.0.l. 3

A Doctrines:

Words and Phrases:

B ·candidate' and 'the States '-Nexus between in the context of election 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 C Constitutional provisions.

'Ordinmy residence '-Meaning of in the context of qualification for membership of either Houses of Parliament.

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, E 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 F 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 of our 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;

KULDlPNA YAR 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, B 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 of the 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 c 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 of Council of States 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 of the House of the People; that the impugned amendment has destroyed the essential characteristic of the Council of States because a F 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 of such State, only by virtue of being so elected to the Council of States by the Members of the Legislative Assembly of such State; that the need for a Second Chamber viz. the Council of States has become redundant, G 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 of States, 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 H

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A 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 of the 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 of States; 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 E of States; that by the impugned amendment, Parliament has whilst purporting to set up "qualification" for membership to the Council of States failed to have due regard to the expression "representative of the State" in Article 80; that the impugned amendment violates the right of secrecy 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 F 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 G 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 of secrecy of vote so as to ensure that the freedom of expression through vote is real; that the fact that election to fill the seats in the <;:ouncil of States by the legislative assembly of the State involves 'voting', the principles of Tenth Schedule are attracted; that the application of the Tenth Schedule itself shows that open

KULDIPNA YAR v. U.0.1. 7

-1 ballot system tends to frustrate the entire election process, as also its sanctity and also the provisions of the Constitution and the RP Act; that the open ballot system, coupled with the looming threat of disqualification under the Tenth Schedule reduces the election to a political party issuing a whip and the candidate being elected by a show of strength. This will result in people with moneybags occupying the seats in the Council of States; that International" B Instruments put emphasis on "secret ballot" since it lays the foundation for \ ensuring free and fair election which in turn ensures formation of a democratic Government showing the true will of the people; that the secrecy of voting has always been the hallmark of the concept of free and fair election, ~ thus very essential for the democratic principles adopted in our polity; that this is the spirit of our.constitutional law and also universally accepted norm c and any departure therefrom in this respect impinges on the fundamental rights, in particular freedom of expression by the voter; that the sanctity and purity of election where voter casts his choice without any fear and favour can be ensured only if it is by secret ballot; that the Election Commission of India, which under the Constitution has been given the plenary powers to supervise the elections freely and fairly, had opposed the impugned amendment D of changing the secret ballot system, its view has, therefore, to be given proper weightage; and that the observations of the Ethics Committee on which the impugned amendment was brought about not only fail to justify the amendment but also run counter to the Constitutional scheme of conducting free and fair election. E Union of India submitted that the impugned amendments became necessary in view of various deficiencies experienced in the working of the Representation of People Act, 1951; that these amendments did not alter or distort the character of the Council of States; that the concept of residence/ domicile is a matter of qualification under Article 84(C) of the Constitution F which is to be prescribed by the Parliament; that the members of the Legislative Assembly are in the best position to decide as to who would ~ represent thern in the Council of States; that by the impugned amendment, ""' the qualification is made more broad based and that the amendment became necessary for ensuring representation of unrepresented States; that there is no constitutional requirement for a member of the Council of States to be G either an elector or an ordinary resident of the State which he represents and, therefore, the word "States" appearing in clause (4) of Article 80 does not comprise the requirement of residence; that basic structure doctrine is inapplicable to Statutes; that the Constitution does not prescribe any mandatory requirement that the elected member should be an elector in the H ~

8 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A State from where he is elected; that several persons whose presence could add to the quality of debates and proceedings in the Council of States had, under the dispensation before amendment, been constrained to enroll themselves as voters in another State and unless they did so, the State would remain unrepresented in the Council of Ministers due to the non-availability B of such talented members, and thus, the opening out of the residential provision was meant to help in this regard; that the Constitution under Article 19(1)(e) guarantees the freedom to a citizen to choose a residence of his choice; that it was pursuant to the view expressed by the Ethics Committee of the Parliament in its report dated 1st December, 1998, in the wake of "emerging trend of cross voting in the Raj ya Sabha and Legislative Council C elections", the proposal for the elections "by open ball«Jt" was examined and the Union of India incorporated such provision through the impugned Act; that "secret ballot is not an inflexible or mandatory procedure" for ensuring free and fair elections and so the provision for open ballot system has been incorporated having regard to "the emerging trends in the election process and as warranted by a rational, reasonable, democratic objective"; that the D Tenth Schedule does not apply to the election in the Council of States and it has no application to the election conducted under the RP Act. Nonetheless, the principles behind making the elections by open ballot furthers the , Constitut:onal provisions in the Tenth Schedule; and that since the bulk of the candidates are elected under the party system, the principle that a person E elected or given the nomination of a party should not be lured into voting against the party by money power is wholesome and a salutary one.

It was submitted for the State of Tamil Nadu that the principle of 'contemporanea expositio' is relevant for interpreting the words "the representative of each State" in Article 80(4) of the Constitution; that the F RP Acts 1950 and 1951 are contemporaneous legislations made by the Constituent Assembly itself acting as provisional Parliament and that they are useful aid for the interpretation of Articles 79 and 80 of the Constitution, just as subordinate legislation is for interpreting an Act; that only a person belonging to a State will have the capacity to represent the State in the Upper G House and that a person could claim to belong to a State only by birth, domicile or residence; that some visible nexus between the State and the person seeking to be its representative is a must in the scheme of the Constitution; 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 they would strengthen the basic H structure of the Constitution, having due regard to its federal character and

, KULDIPNAYAR v. U.0.1. 9 ,... the foundational feature of democracy. A Dismissing the Writ Petitions, the Court

.. ~ ' 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-cameral. (42-B-CI c 1.2. The rule of interpretation says that in order to discern the intention behind the enactment of a provision if ambiguous and to interpret the same, one needs to look into the historical legislative developments. (41-F(

Re: Special Reference No. 1 of 2002 12002] 8 SCC 237, relied on. D 1.3. Clause 60 of the first draft Constitution states 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. However, the Fourth Schedule was omitted by the Drafting Committee. Therefore, with this deletion, the requirement of residence was done away with. It shows that residence was never the constitutional requirement. [43-D-E-Fl

l.4. The legislative history shows that qualification of residence has never been a constant factor. The 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 shows that residence or domicile are not the essential ingredients of the structure and the composition of the Upper House. 143-F-G-Hl 1.5. Residence is a matter of qualification. Therefore, it comes under G 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 India. In the context of Indian Constitution, residence/domicile is an incident of federalism which is capable of being regulated by the Parliament as a qualification which is the subject matter of H

10 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A Article 84 of the Constitution. 144-G-H; 45-AI ,. .....

2.1. Although the Rajya Sabha is designed to serve as a Chamber where the States and the Union of India are represented, in practice, it does not act as a champion of local interests. Even though elected by the State Legislatures, its members vote not at the dictate of the State concerned, but according to B their own views and party affiliation.145-E-FI

2.2. 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. Therefore, the Rajya Sabha is vested with a contingency based power over t" c state legislatures under Article 249, which contributes to the 'Quasi-federal' nature to the Government of the Indian union.146-D-EI

2.3. Article 251 when read with Article 249 of the Constitution provides that in case of inconsistency between a 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 Raj ya 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 a 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. [46-F-G-HI

2.4. 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.147-A-B]

2.5. The federal principle is dominant in our Constitution and that

G principle is one of its basic features, but, it is equally true that federalism under Indian Constitution leans in favour of a strong centre, a feature that militates against the concept of strong federalism. [53-D-Ef - S. R. Bommai & Ors. v. Union of India & Ors., AIR (19941 SC (1918) : [199413 SCC I, followed.

State of West Bengal v. Union of India, f1964] I SCR 371; Re: Under Article 143, Constitution of India, (Special Reference No. l of 1964) AIR H i

, KULDIPNA YAR v. U.0.1.

(1965) SC 745; State of Karna/aka v. Union of India & Anr.. (19781 2 SCR 11 A I; State of Raiasthan &. Ors. v. Union of India Etc. Etc., (1978) I SCR I; ITC ltd v. Agricultural Produce Market Committee & Ors., (2002) 9 SCC 232 and State of West Bengal v. Kesoram Industries ltd & Ors., AIR (2005) SC 1646: (2004110 sec 201, relied on.

2.6. India is not a federal State in the traditional sense of the term. There B can be no doubt as to the fact, and this is of utmost significance for purposes at hand, that in the context of India, the principle of federalism is not territory related. This is evident from the fact that India is not a true federation formed by agreement between various States and territorially it is open to the Central Government under Article 3 of the Constitution, not only to change the boundaries, but even to extinguish a State. Further, when it comes to c exercising powers, they are weighed heavily in favour of the Centre. (55-E-FJ

State of West Bengalv. Union of India, (1964] 1SCR371, referred to.

2.7. The Constitution provides for the bicameral legislature at the center. D The House of the People is elected directly by the people. The Council of States is elected by the Members of the Legislative assemblies of the States. It is the electorate in every State who are in the best position to decide who will represent the interests of the State, whether as members of the lower house or the upper house.155-G) E 2.8. It is no part of Federal principle that the representatives.ofthe States must belong to that State. There is no such principle discernible as an essential attribute of Federalism. 155-H; 56-A)

2.9. It can safely be said that as long as the State· has a right to be represented in the Council of States by its chosen representatives, who are citizens of the country, federalism is not affected. It cannot be said that ~ residential requirement for membership to the Upper House is an essential basic feature of all Federal Constitutions. Hence, if the Indian Parliament, in its wisdom has chosen not to require residential qualification, it would definitely not violate the basic feature of Federalism. Our Constitution does not cease to be a federal constitution simply because a Rajya Sabha Member does not "ordinarily reside" in the State from which he is elected. [62-G-H; 63-AI

3.1. It is well settled that legislation can be declared invalid or • unconstitutional only on two grounds namely, (i) lack of legislative competence H *

12 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A and (ii) violation of any fundamental rights or any provision of the Constitution. 165-BI

Smt. Indira Nehru Gandhi v. Raj Narain, 119751 Supp SCC I, relied on.

3.2. The doctrine of 'Basic Feature' in the context of our Constitution, B does not apply to ordinary legislation which has only a dual criteria to meet; that it should relate to a matter within its competence; and that it should not be void under Article 13 as being an unreasonable restriction on a fundamental right or as being repugnant to an express constitutional prohibition. (68-H; 69-A-BI

C State of Karnataka v. Union of India & Anr., (19771 4 SCC 608, followed.

State of Andhra Pradesh and Ors. v. McDowell & Company & Ors., 119961 3 SCC 709 and Public Services Tribunal Bar Association v. State of U.P. & Anr., (200314 SCC 104, relied on. D 3.3. The basic structure theory imposes limitation on the power of the Parliament to amend the Constitution. An amendment to the Constitution under Article 368 could be challenged on the ground of violation of the basic structure of the Constitution. An ordinary legislation cannot be so challenged. The challenge to a law made, within its legislative competence, by Parliament E on the ground of violation of the basic structure of the Constitution is thus not available to the petitioners. Since 'residence' is not the constitutional requirement for the purpose of election of the members of Parliament, the question of violation of basic structure does not arise. (69-C-DI

In the matter of Special Reference No. I of 2002 (Gujarat Assembly F Election case), 1200218 sec 237, relied on.

4.1. If the principle of contemporanea expositio is relevant for interpreting the words "the representatives of each State" in Article 80(4) of the Constitution with reference to contemporary legislation made by the Constituent Assembly acting as provisional Parliament just as subordinate G legislation is used in order to construe the parent Act, but then, the fallacy of the above approach to the subject lies in the fact that legislation by the provisional Parliament did not produce a constitutional rule. It does not have the sanctity or normative value of Constitutional Law. (75-C-D-EI

State of UP. & Ors. v. Babu Ram Upadhya, (196112 SCR 679 (CB); H Desh Bandhu Gupta and Co. & Ors. v. Delhi Stock Exchange Association ..

KULDIPNA Y AR v. U.0.1. 13

Ltd., IJ 97914 SCC 565; State of Tamil Nadu v. Mis. Hind Stone & Ors.. 11981 I A 2 SCC 205 and Commissioner of Income Tax, Jullundur v. Ajanta Electricals, Punjab, 1199514 SCC 182, relied on.

4.2. The principle of "contemporanea expositio ', is totally irrelevant if not misleading for present purposes. If the Constitution h11d used an ambiguous expression, which called for interpretation, the manner in which B the Constitution had been interpreted soon after it was enacted would be a useful aid to interpretation. No such question arises in this case. Indeed, the Parliament had earlier provided for residential qualification. But it decided ~- to repeal it through the impugned amendment. Both times, that is while originally enacting the RP Act in 1951 and while amending it in 2003, the Parliament was acting within its legislative competence. It is true that the c provisional Parliament in 1951 did prescribe residence inside the State as a qualification for Membership of the Council of States. But, it also needs to be borne in mind that the same Parliament in its character of a Constituent Assembly had refused to exalt the qualification (including that of residence) to a Constitutional requirement and rather showed consciousness that the provision for qualifications might need to be revisited from time to time and, therefore, finding it inadvisable to prescribe the same in the Constitution itself. 175-F-G-HI

4.3. The provision of residence existed, prior to impugned amendment, in a Parliamentary law, the Representation of the People Act, 1951 but there is no express provision in the Constitution itself requiring residence as a qualification. It cannot be said that amendment of the Act to remove what the Constitution itself did not provide for, is unconstitutional. 176-A-BI

5.1. All enactments passed by provisional Parliament, including the RP Act 1951, are laws like any other law made by Parliament. Accordingly, each of them is subject to power of Parliament to bring about amendments like any other statute. 176-Cf .l, 5.2. The proposition that the Constitution and the R.P. Acts though form an integrated scheme of elections, but it does not follow that on this account the domiciliary requirement in Section 3 of R.P. Act 1951 has to be treated as a constitutional requirement. 176-EI ..... "- 6.1. The expression "representatives of States" as used in Article 80 and the expression "representation of States" as used in proviso (d) of Article 368(2) of the Constitution are not synonymous or employed in same sense. -~ These expressions are materially different and used in different context in H

14 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A the two provisions. This is clear from the simple fact that Article 80 is talking of "representatives" of States in the Council of States while proviso (d) of Article 368(2) pertains to "representation" of States in Parliament. The first provision is of limited import while the latter has a wider connotation. Article 4 also uses the expression "representation in Parliament". It specifically B excludes such amendments as contemplated in Articles 2 and 3 from the requirements of the procedure prescribed in Article 368 for Constitutional amendments. The expression "representation of States in Parliament", as used in Proviso (d) to Article 368(2), therefore, cannot be of any use to the case of the petitioners. [77-G-H; 78-A; G-Hl

C 6.2. Fourth Schedule to the Constitution lays down the number of persons who would represent each State in the Council of States. This balance between the various States is not at all affected by way of the legislation impugned in the writ petitions at hand since the amendments made by the impugned Act relates only to the residential qualification of the 'representatives' and is not concerned with the "representation of the States" in Parliament. [80-G-H) D 7.1. Article 79 leaves no doubt about the fact that House of the People and the Council of States are both "Houses" of Parliament. The names given to the two Houses are proper nouns and do not spell out any right or obligation, much less limitations on Parliament's legislative power available to it under Article 84(c) of the Constitution. [82-G-Hl E 7.2. An elector has to be an ordinary resident of the Constituency in which he is registered as such in view of the statutory requirements of Sections 19 and 20 of the RP Act, 1950. There is no requirement in law that the person elected must possess the same qualifications as the elector F possesses. This is further clear from the scheme of the Constitution as is evident from Article 171(3) of the Constitution. [96-F-Gl

7.3. The question of"ordinarily resident" is relevant for preparation . of electoral rolls and nothing further. This is evident from bare reading of the scheme of provisions contained in RP Act, 1950, in particular Sections G 130, 14, IS, 17, 18, 19 and 20 of the said Act. Electoral rolls are prepared basically for assembly constituencies and revised year-wise. A conjoint reading of Sections 17, 18, 19 and 20 shows that a person can get himself registered as voter once in only one assembly constituency which must be the one within which he is an ordinary resident. (97-F-G-H)

H 7.4. The qualification of "ordinarily resident" is provided for •'

KULDIPNA YAR v. U.0.1. 15

registration as a voter in a general election for deciding the place of voting A by an elector and for the preparation of electoral rolls. Under our constitutional scheme, Parliamentary or Assembly constituencies are territorially divided and hence territorial link is provided for the voter, but importantly not for the candidates. 198-DI

Pampakavi Rayappa Belagal/ v. B.D. Jatti & Ors., 1197112 SCR 611, B relied on.

4 7.5. The arrangement prior to the impugned amendment, to determine the question as to whether a particular person is ordinarily resident of a particular place or not, had not worked satisfactorily. The law does not give a clear concise definition or guidance in this regard. The declaration of the c person concerned is generally taken as the gospel truth and before the ; correctness of such declaration is disputed, the challenger must arm himself with cogent proof showing facts to the contrary. In this scenario, declarations that were false to the knowledge of the makers thereof seem to have been used brazenly and with impunity.1111-G-H; 112-Al D 7.6. The Parliament in its wisdom has chosen to do away with the domiciliary requirement as qualification for contesting an election to fill a seat as representative of a particular State in the Council of States, fault cannot be found with such decision of the Parliament on the ground that difficulty to define what was meant by the expression "ordinarily resident" was not an honest ground. There was nothing in the Constitution or the law at any point of time rendering the domiciliary requirement as crucial qualification for purposes particularly of the Council of States. While the impugned amendment cannot be assailed on these reasons, doing away with the domiciliary requirement cannot always be the answer since it would remain an obligation of the Legislature and the Central Government to define precisely as to what is meant by the expression "ordinarily resident" because that would remain sine qua non for registration of a person as an elector in a particular Constituency and thus a subject from which one cannot shy away. It is hoped for purposes of its proper application under the relevant provisions of the law concerning elections that the Parliament and the Central Government would take necessary steps to unambiguously define the said expression. (112-C-D-El

7.7. Parity in the matter of qualification to the extent concerning ~>. 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 H

16 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A 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 of such 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 of the 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 G 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.

H 10.2. No contradiction, ambiguity, or absurdity is found in the provisions

p. 17 Copy page pinpoint

1 of the law as a result of the impugned amendment. Even while construing the A 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[

I I.I. A representative of the State is as much a Member of Parliament B as is a member of the 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 of States as against word "member" used in relation to the House of the People holds the key is rejected. [86-B-C[ 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 D "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. E [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 F 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. G 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. H

18 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A 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

B 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 C 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 D 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 E 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

KULDIPNA YAR v. U.0.1. 19

G. Narayanaswami v. G. Pannerselvam & Ors., 119721 3 SCC 717, A followed.

12. The argument that the constitutional recognition giver. to the territorial link between the member of the Council of States(as representing the particular State in the Council of States) and his position as a registered elector in any Panchayat or Municipal area in that State for purposes of local B 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 C 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 of the House of the People and the Legislative Assemblies (as indeed, the Legislative Councils) of the State concerned. D (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 E 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 F 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 of various 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 of States are one of the several sources being tapped for the purpose G of providing for representation of different interest groups in the deliberative wing at the local level, it was incumbent to lay down some method of selection.

(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 H

20 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

A was considered important in relation to the members of the Council of States 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 of States. There is no such express Constitutional provision prescribing such B 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. C 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 D 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

E 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.

H 3.4. The nexus between the candidate and the State from which he gets

KULDIPNA VAR v. U.0.1. 21 elected to fill a seat in the Council of States 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 D 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 E requirement from the qualifications for membership of Parliament 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. F 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 G 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 H

22 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A 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 B 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 C 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 D 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

E 14.5. The fact that a candidate needs to be enrolled in any parliamentary constituency in India does not deprive him of the 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 F 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 - G 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 if an '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 a C .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 D 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, E 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 F 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 of States. (119-C-DI

17.2. It is important to note that, even after the amendment, (i) the G 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. H

24 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A 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 B 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 C 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 D "by open ballot", thus no longer subject to the principle of secret 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 of amendment of the Parliament under the Constitution. E It has also been the consistent view of this Court that the edifice of democracy 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 of Kera/a & Anr., 119731 F 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

G Government depends on a free and fair election system. (129-GI

KULDIPNA Y AR v. U.0.1. 25 18.4. There is no basis to contend that the right to vote and elect A 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. B 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 C of States. 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 of voters for the electi(ln. D Thus, the act of casting votes by each of them, 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

26 SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R.

A provide for formation of a Government through secret ballot Prime importance is given in these two Human Rights instruments on "will of the electors" r - giving basis to the authority of Government 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 B 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 c 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.

D 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 E 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 of election for the offices of the President and the Vice President respectively, provide for election by "secret ballot". [156-G-H; 157-A)

F 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 G said Articles shows that "secret ballot" is not always implied. It is not incorporated in the concept of voting 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 of a secret ballot would be to read the words "and the voting at such election shall be by secret ballot" into the provision. H To do so would be against every principle of Constitutional and statutory

KULDIPNA Y AR v. U.0.1. 27

1 construction. Thus, from this angle, it is difficult to hold that there is A 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 B 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. Chief Election Commissioner, 1197811 SCC 405, referred to. c 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 of election 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 of the 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 of the 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 G ':; 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 a

. ~ 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 H

28 SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R.

A 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 B vote is empty without the right to 'free and fair elections'. It is the concept of 'free and fair elections' in terms of an 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-G I ~

c Judd v. Mckeon, (1926) 38 CLR 380; King v. James, (1972) 128 CLR 221 and New National Party of South Africa v. Government of the Republic a/South Africa & Anr., (1999) 3 SA 191, referred to.

"Australian Constituitonal law" 2nd Edition by Fajgenbaum and Hanks, referred to. D 20.2. It is evident that the right to vote is a concept which has to yield to a concept of the 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 E 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. F [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 )

KULDIPNA Y AR v. U.0.1. 29 , elections. (175-G-H; 176-A(

20.4. The distinguishing feature between 'constituency-based A

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 expelled for breach of discipline. Therefore, to give effect to the concept B 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, c 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 of States is by a division which is a system of open ballot. Reference may be made in this respect to Rules 7, 8, 364, 365, D 367, 367 A, 367 AA 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 -t Procedure and Conduct of Business in the Council of States. Hence, the 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 E 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 of States 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] F

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 G 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 H .if

30 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A 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 B 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 C 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

D 20.10. A multi party democracy is a necessary part of the 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 E 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 F 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 of elections. If secrecy becomes a source for corruption then transparency have the capacity to remove it. The Legislation pursuant to a legislative policy G 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.) H WITH

KULDIPNAYAR v. U.0.1. [SABHARWALC.I.] 31 'j Writ Petition (C) Nos. 262, 266 and 305 of2004. A 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., B 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, c 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, D 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, E 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. F ~ The Judgment of the Court was delivered by Y.K. SABHARW AL, CJ. Background

By this writ petition under Article 32 of the Constitution of India, petitioner seeks to challenge amendments made in the Representation of G ~ 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 H

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A 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 B 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

C From 1951 upto 2003, Sections 3, 59, 94 and 128 as originally stood were as follows: "3. Qualification for membership of the Council of States.-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. D

59. Manner of voting 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 of voting 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 of voting.-{)) 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 G 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 ,~

H 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 A 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." B 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. c 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 D 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. E 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 F 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 G 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 H

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A 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 of the 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". D 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" E 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 F In the year 1952, the Parliament came to be duly constituted and summoned to meet for the first session under the provisions of the Constitution. Till then, the Constituent Assembly, which had prepared and adopted the Constitution, functioned as the Provisional Parliament, in accordance with the G 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 H read with aforementioned enabling provisions, enacted a law called the

KULDIPNAYAR v. U.0.1.[SABHARWAL.C.1.] 35 "Representation of the 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 IV A to the RP ' Act, 1950.

The RP Act, 1950 did not contain all the provisions relating to elections. c 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 D 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 E 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.-{!) A person shall not be qualified to be chosen as a representative of any F 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 G 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 H -·

36 SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R. r A be qualified to be chosen as a representative of any Part C St<1te or group of such States in the Council of States unless he is an elector for a Parliamentary constituency in that State or in any of the States in that group, as the case may be."

Section 3 of the RP Act, 1951, was substituted by the following provision B through the Adaptation of Laws (No. 2) Order, 1956 and thus came to read as under:

"3. Qualification/or membership of the Council of States.-A person \ shall not be qualified to be chosen as a representative of any State other than the State of Jammu and Kashmir or Union territory in the c Council of States unless he is an elector for a Parliamentary constituency in that State or territory."

The above provision underwent a further change, with effect from 14th December, 1966, as a result of Act 47of1966, which made it applicable to all the States and Union Territories of India by omitting the words "other than D the State of Jammu & Kashmir".

Act 40 of 2003 has amended the provision, with effect from 28th August, r 2003, so as to substitute the words "in that State or territory" with the words "in India". The amended provision reads as under: E "3. Qualification/or membership of the Council of States.-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 India."

Issue No. I : Deletion of 'domicile' F The question which needs resolution is : what is meant by the word "elector". For this, one will have to refer to certain other provisions of the • ~ RP Act, 1950 and RP Act, 1951.

The effect of the amendment to Section 3 of RP Act, 1951, brought G about by Act 40 of 2003 thus is that a person offering his candidature for election to fill a seat in the Council of States is now required to be simpliciter "an elector for a Parliamentary constituency in India"; that is to say, he is no longer required to be an elector for a Parliamentary constituency in the "State or Territory" to which the seat for which he is a candidate pertains. H

KULDIPNA YAR v. U.0.1. [SABHARWAL, CJ.] 37 The word "elector" has been defined in Section 2( e) of the RP Act, 1951 A which reads as under:

" 'elector' in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 B (43 of 1950)."

Section 16 of the RP Act, 1950, which has been referred to in the above- quoted definition of the word "elector" reads as under:

"16. Disqualifications for registration in an electoral roll.---{1) A C person shall be disqualified for registration in an electoral roll if he-

is not a citizen of India; or is of unsound mind and stands so declared by a competent court; or is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections. (2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included:

Provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification under clause (c) of sub-section (I) shall forthwith be reinstated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorizing such removal."

Section 19 of the RP Act, 1950 relates to the "conditions of registration". It provides as under:

"19. Conditions of registration-Subject to the foregoing provisions of this Part, every person who-

is not less than [eighteen years] of age on the qualifying date, and

is ordinarily resident in a constituency,

shall be entitled to be registered in the electoral roll for that H

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A constituency."

The expression "ordinarily resident" as appearing in Section 19(b) has been explained in Section 20 of the RP Act, 1950, which may also be extracted, inasmuch as it is of great import in these matters. It reads as under:

B "20. Meaning of 'ordinarily resident'.--{!) A person shall not be deemed to be ordinarily resident in a constituency on the ground only that he owns; or is in possession of, a dwelling house therein.

(IA) A person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein.

(I B) A member of Parliament or of the Legislature of a State shall not during the term of his office cease to be ordinarily resident in the constituency in the electoral roll of which he is registered as an elector at the time of his election as such member, by reason of his absence from that constituency in connection with his duties as such member.

(2) A person who is a patient in any establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or mental defectiveness, or who is detained in prison or other legal custody at any place, shall not by reason thereof be deemed to be ordinarily resident therein.

(3) Any person having a service qualification shall be deemed to be ordinarily resident on any date in the constituency in which, but for his having such service qualification, he would have been ordinarily resident on that date.

(4) Any person holding any office in India declared by the President in consultation with the Election Commission to be an office to which the provisions of this sub-section apply, shall be deemed to be ordinarily resident on any date in the constituency in which, but for the holding of any such office, he would have been ordinarily resident on that date.

(5) The statement of any such person as is referred to in sub-section (3) or sub-section (4) made in the prescribed form and verified in the prescribed manner, that [but for his having the service qualification] H or but for his holding any such office as is referred to in sub-section

KULDIPNAYAR v. U.0.1.[SABHARWAL,CJ.] 39 (4) he would have been ordinarily resident in a specified place on any date, shall, in the absence of evidence to the contrary, be accepted as correct.

(6) The wife of any such person as is referred to in sub-section (3) or sub~section (4) shall if she be ordinarily residing with such person be deemed to be ordinarily resident on in the constituency specified by such person under sub-section (5).

(7) If in any case a question arises as to where a person is ordinarily resident at any relevant time, the question shall be determined with reference to all the facts of the case and to such rules as may be made in this behalf by the Central Government in consultation with the C Election Commission.

(8) In sub-sections (3) and (5) "service qualification" means-

being a member of the armed forces of the Union; or

being a member of a force to which the provisions of the Army Act, D 1950 (46 of I950), have been made applicable whether with or without modifications; or

being a member of an armed police force of a State, who is serving outside that State; or being a person who is employed under the Government of India, in a post outside India.

All the above provisions of law have to be read together and the conjoint effect thereof is that a person in order to qualify to be registered as an elector in relation to a constituency, besides fulfilling other qualifications, must be a citizen of India, not less than I 8 years of age on the qualifying date

- (which by virtue of Section 14 of RP Act, 1950, means the first day of January of the year in which the electoral list of the constituency is prepared or revised), and, what is significant here, be "ordinarily resident" in that constituency. G As a result of the impugned amendment to Section 3 of the RP Act, 1951, it is no longer required that the candidate for an election to fill a seat in the Council of States be "ordinary resident" of the State to which that seat pertains. •• H

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A The above amendment, which can be loosely described as an amendment If doing away with the requirement of domicile, has been challenged as unconstitutional in the writ petitions at hand.

Submissions on domicile requirements

B Shri Sachar, learned senior counsel for the 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 of our democracy and that it distorts the balance of power between the Union and the States and is, therefore, violative of the provisions of the Constitution. In this connection, it was urged that the Council of States is a House of Parliament constituted to provide representation of various States and Union Territories; that its members have to represent the people of different States to enable them to legislate after understanding their problems; 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.