KULDIP NAYAR v. UNION OF INDIA AND ORS.

Learned counsel further submits that India has adopted parliamentary system of democracy in which the Union Legislature is a bi-camera! legislature, that such legislature represents the will of the people of the State whose cause has to be represented by the members. It is urged that the impugned amendments removes the distinction in the intent and purpose of Lok Sabha and Rajya Sabha and that the mere fact that there exists 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. Reliance is also placed in this connection on Rajya Sabha Rules to show the importance of residence as qualification of a representative of the State. It is further contended that the requirement of domicile makes the upper House an 'alter ego' of the lower House.

Mr. Nariman, appearing on behalf of the petitioner Shri Indrajeet, while supplementing the arguments above-mentioned, contended that the Constitution and the RP 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 and that the said scheme is provided for in Article 80 and Article 84 of the Constitution as also in Sections 17, 18 and 19 of the RP Act, H 1950 and in Section 3 of the RP Act, 1951, which scheme guarantees the

KULDIPNA YAR v. U.0.¹. [SABHARWAL,CJ.] 41 representative character of the Council. It is urged that by deletion of the word 'domicile' or 'residence' or by not reading the word 'domicile' or 'residence' in Article 80(4), the basic requirement of the representative federal body stands destroyed.

Shri Vahanvati, Ld. Solicitor General of India, on the question of domicile submitted that the impugned amendments became necessary in view of various deficiencies experienced in the working of the RP Act 1951: that the said amendments did not alter or distort the character of the Council of States and ·~ that the concept of residence/domicile is a matter of qualification under Article 84(c) which is to be prescribed by the Parliament under the Indian Constitution unlike the US Constitution. In this connection, it was urged that the member~ of the Legislative Assembly are in the best position to decide as to who would represent them in the Council of States. The submission made was that by the impugned amendment, the qualification is made more broad based and that the amendment became necessary for ensuring representation of unrepresented States. According to Union of India, there is no constitutional requirement for a member of the Council of States to be 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.

Constitutional and Legislative History E (i) Rule of interpretation

Before coming to the legislative history, we may state that 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 . F .> The key question is whether residence was ever treated as a constitutional requirement under Article 80(4 ).

In re: Special Reference No. I of 2002 (2002) 8 sec 237, it was G 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 H _,;a

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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) E 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.

F 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

G 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. H for which purpose, the President should be given authority to nominate. The

KULDIPNA YAR v. U.0.¹. [SABHAR WAL CJ.) 43 necessity of the Upper Chamber was also the subject matter of debate in the A Constituent Assembly on 28th July, 1947. These debates indicate the purpose for having the Upper Chamber. The object of the 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. B 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 E 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 H

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A 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 B 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 C 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 D 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 of the 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 G 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

KULDIPNA YAR 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 of taxation and expenditure. The Council of Ministers is responsible to the Lok Sabha. c 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 D 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 of the Government are discussed twice. As a revising chamber, the Rajya Sabha helps in improving Bills passed by the Lok Sabha. Although E 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 of the Raj ya 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 F 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 G ~ 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 H ,i}I.

46 SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R. 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 'Quasi- federal' 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 two- thirds 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 F (3) specify the limitations on the enforcement of this provision. Article 251 when read with Article 249 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 Rajya Sabha to encroach upon the specified legislative competence of a state legislature by declaring G 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. This bias towards 'Unitary power' under nonnal H circumstances is not seen either in U.S.A. or Canada.

KULDIPNAYAR v. U.0.¹ (SABHARWAL,CJ.] 47 Federalism A 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 B 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 matters of their local administration? I think it is a very big charge to make that this Constitution is not a federal Constitution, and that it is a unitary one. We should not forget that this question that the Indian Constitution should be a federal one has been settled by our Leader who is no more with us, in the Round Table Conference in London eighteen years back."

"I would ask my honourable friend to apply a very simple test so far as this Constitution is concerned to find out whether it is federal or not. The simple question I have got from the German school of political philosophy is that the first criterion is that the State must exercise compulsive power in the enforcement of a given political ). order, the second is that these powers must be regularly exercised over all the inhabitants of a given territory; and the third is the most important and that is that the activity of the State must not be completely circumscribed by orders handed down for execution by the superior unit. The important words are 'must not be completely circumscribed', which envisages some powers of the State are bound to be circumscribed by the exercise of federal authority. Having all these factors in view, I will urge that our Constitution is a federal Constitution. I urge that our Constitution is one in which we have given power to the Units which are both substantial and significant H

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A in the legislative sphere and in the executive sphere. "

(emphasis supplied)

In this context, Dr. B.R. Ambedkar, speaking in the Constituent Assembly had explained the position in the following words: B "There is only one point of Constitutional import to which I propose .to make a reference. A serious complaint is made on the ground that there is too much of centralization and that the States have been reduced to Municipalities. It is clear that this view is not only an exaggeration, but is also founded on a misunderstanding of what c exactly the Constitution contrives to do. As to the relation between the Centre and the States, it is necessary to bear in mind the fundamental principle on which it rests. The basic principle of Federalism is that the legislative and executive authority is partitioned between the Centre and the States not by any law to be made by the Centre but the Constitution itself This is what the D Constitution does. The States, under our Constitution, are in no way dependent upon the Centre for their legislative or executive authority. The Centre and the States are co-equal in this matter. It is difficult to see how such a Constitution can be called centralism. It may be that the Constitution assigns to the Centre too large a field for the operation of its legislative and executive authority than is to be found in any other Federal Constitution. It may be that the residuary powers are given to the Centre and not to the States. But these features do not form the essence of federalism. The chiefmark offederalism, as I said lies in the partition of the legislative and executive authority between the Centre and the Units by the Constitution. This is the principle embodied in our Constitution."

(emphasis supplied)

The Constitution incorporates the concept of federalism in various provisions. The provisions which establish the essence of federalism i.e. G having States and a Centre, with a division of functions between them with sanction of the Constitution include, among others, Lists II and III of Seventh Schedule that give plenary powers to the State Legislatures; the authority to Parliament to legislate in a field covered by the State under Article 252 only with the consent of two or more States, with provision for adoption of such H legislation by any other State; competence of Parliament to legislate in matters.

KULDIPNA YAR v. U.O.l. [SABHAR WAL. CJ.] 49

" pertaining to the State List, only for a limited period, under Article 249 "in the national interest" and under Article 250 during "emergency"; vesting the President with the power under Article 258( I) to entrust a State Government, A

with consent of the Governor, functions in relation to matters to which executive power of the Union extends, notwithstanding anything contained in the Constitution; decentralization of power by formation of independent municipalities and Panchayats through 73rd and 74th Amendment; etc. B

,. In re: Under Article 143, Constitution of India, (Special Reference No. I of 1964) AIR ( 1965) SC 745 (Paragraph 39 at 762)], this Court ruled thus: • "In dealing with this question, it is necessary to bear in mind one fundamental feature of a Federal Constitution. In England, Parliament c is sovereign;. and in the words of Dicey, the three distinguishing features of the principle of Parliamentary Sovereignty are that Parliament has the right to make or unmake any law whatever; that no person or body is recognised by the law of England as having a right to over-ride or set aside the legislation of Parliament, and that the right or power of Parliament extends to every part of the Queen's dominions (1 ). On the other hand, the essential characteristic of -,. federalism is "the distribution of limited executive, legislative and judicial authority among bodies which are coordinate with and independent of each other". The supremacy of the constitution is fundamental to the existence of a federal State in order to prevent either the legislature of the federal unit or those of the member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union, but not prepared to merge their individuality in a unity. This supremacy of the constitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of J. distribution of powers. Nor is any change possible in the Constitution by the ordinary process of federal or State legislation (2). Thus .the dominant characteristic of the British Constitution cannot be claimed by a Federal Constitution like ours." G In the case of State ofKarnataka v. Union of India & Anr., [1978] 2 SCR I, Justice Untwalia (speaking for Justice Singhal, Justice Jaswant Singh and for himself), observed as follows:

"Strictly speaking, our Constitution is not of a federal character where .... l.b, separate, independent and sovereign State could be said to have H

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A joined to form a nation as in the United States of America or as may be the position in some other countries of the world. It is because of that reason that sometimes it has been characterized as quasi-federal in nature".

In S. R. Bommai & Ors. v. Union of India & Ors., AIR (1994) SC ( 1918) B [1994] 3 sec l, a Constitution Bench comprising 9 Judges of this Court considered ·the nature of federalism under the Constitution of India. Justice A.M. Ahmadi, in Paragraph 23 of his Judgment observed as under:

" ......... the significant absence of the expressions like 'federal' or 'federation' in the constitutional vocabulary, Parliament's powers under c Articles 2 and 3 elaborated earlier, the extraordinary powers conferred to meet emergency situations, the residuary powers conferred by Article 248 read with Entry 97 in List I of the VII Schedule on the Union, the power to amend the Constitution, the power to issue directions to States, the concept of a single citizenship, the set up of an integrated judiciary, etc., etc., have led constitutional experts to doubt the appropriateness of the appellation 'federal' to the Indian Constitution. Said Prof. K. C. Wheare in his work 'Federal Government: • 'What makes one doubt that the Constitution of India is strictly and fully federal, however, are the powers of intervention in the affairs of the States given by the Constitution to the Central Government and Parliament'."

Thus in the United States, the sovereign States enjoy their own separate existence which cannot be impaired; indestructible States having constituted an indestructible Union. In India, on the contrary, F Parliament can by law form a new State, alter the size of an existing State, alter the name of an existing State, etc. and even curtail the power, both executive and legislative, by amending the Constitution. That is why the Constitutio11 of India is differently described, more appropriately as 'quasi-federal' because it is a mixture of the federal and unitary elements, leaning more towards the latter but then what G is there in a name, what is important to hear in mind is the thrust and implications of the various provisions of the Constitution bearing on the controversy in regard to scope and ambit of the Presidential power under Article 356 and related provisions."

(emphasis supplied) H

KULDIPNA YAR v. U.0.¹. [SABHARWAL, CJ.] 51 Justice K. Ramaswami in Paragraph 247 and 248 of his separate Judgment A in the same case observed as under:-

"247. Federalism envisaged in the Constitution of India is a basic feature in which the Union of India is permanent within the territorial limits set in Article I of the Constitution and is indestructible. The State is the creature of the Constitution and the law made by Articles B 2 to 4 with no territorial integrity, but a permanent entity with its boundari~s alterable by a law made by Parliament. Neither the relative importanc·e of the legislative entries in Schedule VII, Lists I and II of the Constitution, nor the fiscal control by the Union per se are decisive to conclude that the Constitution is unitary. The respective legislative powers are traceable to Articles 245 to 254 of the Constitution. The State qua the Constitution is federal in Structure and independent in its exercise of legislative and executive power. However, being the creature of the Constitution the State has no right to secede or claim sovereignty. Qua the Union, State is quasi-federal. Both are coordinating institutions and ought to exercise their respective powers with adjustment, understanding and accommodation to render socio- economic and political justice to the· people, to preserve and elongate the constitutional goals including secularism.

248. The preamble of the Constitution is an integral part of the Constitution. Democratic form ofGovernment.federal structure, unity and integrity of the nation, secularism, socialism, social justice and judicial review are basic features of the Constitution. "

(emphasis supplied)

Justice B.P. Jeevan Reddy, writing separate Judgment (for himself and on behalf of S.C. Agrawal, J.) concluded in Paragraph 276 thus: ). "The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-a-vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the Courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whiitling down the powers reserved to the States . ..... must put the Court on guard against ~.ny conscious whittling down of the powers of the States. Let it be said that the federalism in the Indian H

52 SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R. t( ~

A Constitution is not a matter of administrative convenience, !:rnt one of principle the outcome of our own historical process and a recognition of the ground realities .... enough to note that our Constitution has certainly a bias towards Centre vis-a-vis the States (Auto•nobile Transport (Rajasthan) Ltd. v. Stale ofRajasthan, [1963] l SCR 491 at page 540 : AIR ( 1962) SC 1406. It is equally necessary to emphasise B that Courts should be carefi1I not to upset the delicately crafted constitutional scheme by a process of interpretation.

(emphasis supplied)

In paragraph 98, Sawant, J. proceeded to observe as under: - c "In this connection, we may also refer to what Dr. Ambedkar had to say while answering the debate in the Constituent Assembly in the context of the very Articles 355, 356 and 357 .... He has emphasised there that notwithstanding the fact that there are many provisions in the Constitution whereunder the Centre has been given powers to D override the States, our Constitution is a federal Constitution. It means that the States are sovereign in the field which is left to them. They have a plenary authority to make any law for the peace, order and good Government of the State."

In Paragraph I 06, his following observations are relevant:- E "Thus the federal principle, social pluralism and pluralist democracy which form the basic structure of our Constitution demand that the judicial review of the Proclamation is~ued under Article 356(1) is not only an imperative necessity but is a stringent duty and the exercise F of power under the said provision is confined strictly for the purpose and to the circumstances mentioned therein and for none else." l_

(emphasis supplied)

In ITC Ltd. v. Agricultural Produce Market Committee & Ors., [2002] G 9 sec 232, this Court ruled thus: -

"The Constitution of India deserves to be interpreted, language permitting, in a manner that it does not whittle down the powers of the State Legislature and preserves the federalism while also upholding the Central supremacy as contemplated by some of its articles ....." H (emphasis supplied)

KULDIPNAYAR v. U.0.¹.[SABHARWALCJ.] 53 )> In State of West Bengal v. Kesoram Industries Ltd. and Ors., AIR (2005) A SC I 646 : (2004] I0 SCC 20 I. decided by a Constitution bench comprising 5 Judges, the majority judgment in Paragraph 50 observed as under:

"Yet another angle which the Constitutional Courts would advisedly do better to keep in view while dealing with a tax legislation, in the light of the purported conflict between the powers of the Union and B .. the State to legislate, which was stated forcefully and which was logically based on an analytical examination of constitutional scheme }· by Jeevan Reddy, J. in S. R. Bommai and Ors. v. Union of India, [ 1994] ' 3 SCC I, may be touched. Our Constitution has a federal structure. Several provisions of the Constitution unmistakably show that the c Founding Fathers intended to create a strong centre....... "

(emphasis supplied)

True, the federal principle is dominant in our Constitution and that principle is one of its basic features, but, it is also equally true that federalism under Indian Constitution leans in favour of a strong centre, a feature that militates against the concept of strong federalism. Some of the provisions that .~ can be referred to in this context include the power of the Union to deal with extraordinary situations such as during the emergency (Article _250, 252, 253) and in the event of a proclamation being issued under Article 356 that the governance of a State cannot be carried on in accordance with the provisions of the Constitution; the power of the Parliament to legislate with respect to a matter in the State List in the national interest in case there is a resolution of the Council of States supported by prescribed majority (Article 249); the power of the Parliament to provide for creation and regulation of All India Services common to Union and the States in case there is a Resolution of the F Council of States supported by not less than two-third majority (Article 312); ) there is only one citizenship namely the citizenship of India; and, perhaps ::IP most important, the power of the Parliament in relation to the formation of new States and alteration of areas, boundaries or names of States (Article 3). G This Court in the case of Staie of West Bengal v. Union of India, [l 964] SCR 371 at 396, has observed that our Constitution is not of a true or a traditional pattern of federation. In a similar vein are other judgments of the Court, like State of Rajasthan & Ors. v. Union of India Etc. Etc., (1978] l SCR I at pages 4G and 33F, that speak of the conspectus of the provisions that whatever appearance of a federal structure our Constitution may have, judging H ' (}>

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A by the contents of the power which a number of provisions carry with them and the use made of them, is in its operation, more unitary than federal.

The concept of federalism in our Constitution, it has been held, is vis- a-vis the legislative power as would be evident by various Articles of the Constitution. In fact, it has come into focus in the context of distribution of B legislative powers under Article 246. {ITC ltd. v. Agricultural Produce Market Committee & Ors., [2002] 9 SCC 232)

The Commission on Inter-State Relations (Sarkaria Commission), in its Report has specifically said that the Constitution as emerged from the C Constituent Assembly in 1949, has important federal features but it cannot be federal in the classical sense. It was not the result of an agreement to join the federation, unlike the United States. There is no dual citizenship, i.e., of the Union and the States. (Pages 8 and 9 of the Report of the Commission on Centre-State Relations, Part-I, and paragraphs 1.3.⁴, 1.3.05, 1.3.06, 1.3.07].

D The arguments of the Writ Petitioners about the status, position, role and character of the Council of States in the Constitutional scheme have to be examined in the light of well-settled law, culled out above, as to the nature of Indian federalism. • In his attempt to argue that there necessarily has to be a territorial nexus with a State or a Union Territory in a federal set up, Mr. Rao for the State of Tamil Nadu referred to the use of the expression "We, the people of India" in the Preamble, description of India as a "Union of States" in Article !; territory of India being comprised of (I) the territories of the States and (b) the territories of the Union Territories as per Article 1(3); Article 326 requiring a person to be a citizen of India so as to be an elector; and the provisions about citizenship of India as contained in Articles 5, 6, 8 and 9 laying stress on the territory of India. He also referred to the Coilins Paperback English

G Dictionary to point out meanings of the expressions "Country" [a territory distinguished by its people, culture, geography, etc.; an area of land distinguished by its political autonomy; state; the people of a territory or state] and "State" [a sovereign political power or community; the territory - occupied by such a community; the sphere of power in such a community: affairs of state; one of a number of areas or communities having their own governments and forming a federation under a sovereign government, as in the U.S.].

H Mr. Sachar, taking a similar line, submitted that requirement of domicile

KULDIPNA YAR v. U.0.¹. [SABHARWAL, CJ.] 55 > is so intrinsic to the concept of Council of States that its deletion not only A 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. He also submitted that the central idea to be kept in mind for appreciating the argument is that it is government "of the people" and "by the people". B Thus, it is the argument of the petitioners that "Birth" and "Residence" are the two constituently recognized links with a State or a Union Territory

,) ,• in terms of the Constitution. In order to represent a State or a Union Territory in the Council of States in terms of Article 80, a person should be a citizen of India having an identifiable nexus with the State or the Union Territory because the very concept of Council of States recognizes that in a federal c constitutional set up, the States and Union Territories have their own problems, interests, concerns and views about many issues and, therefore, there shall be a forum exclusively to represent the States and the Union Territories in the national legislature, i.e. Parliament. Unless a person belongs to a State or a Union Territory, in the scheme of the Constitution he will not have the capacity to represent the State or the Union Territory, as the case may be .

•• But then, India is not a federal State in the traditional sense of the term. There 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 (State of West Bengal v. Union of India, [1964] 1 SCR 371). Further, when it comes to exercising powers, they are weighed heavily in favour of the Centre, so much so that various descriptions have been used to describe India such as a pseudo-federation or quasi-federation in an amphibian form, etc. ,,>. :=-- The Constitution provides for the bicameral legislature at the centre. 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. G 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.

It is no part of Federal principle that the representatives of the States (p must belong to that State. There is no such principle discernible as an H

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

A essential attribute of Federalism, even in the various examples of upper chamber in other countries.

Other Constitutions-Role of Rajya Sabha vis-a-vis role of Upper House in the other Constitutions

B The growth of 'Bicameralism' in parliamentary forms of government has been functionally associated with the need for effective federal structures. This nexus between the role of 'Second Chambers' or Upper Houses of Parliament and better co-ordination between the Central government and those of the constituent units, was perhaps first laid down in definite terms C with the Constitution of the United States of America, which was ratified by the thirteen original states of the Union in the year 1787. The Upper House of the Congress of the U.S.A., known as the Senate, was theoretically modeled on the House of Lords in the British Parliament, but was totally different from the latter with respect to its composition and powers.

D Since then, many nations have adopted a bicameral fonn of central legislature, even though some of them are not federations. On account of Colonial tu le, these British institutions of parliamentary governance were also embodied in the British North America Act, 1867 by which the Dominion of Canada came into existence and The Constitution of India, 1950. In Canada, the Parliament consists of the House of Commons and the Senate ('Upper E House'). Likewise the Parliament of the Union of India consists of the Lok Sabha (House of the People) and the Rajya Sabha (Council of States, which is the Upper House). In terms of their functions as agencies of representative democracies, the Lower Houses in the Legislatures of India, U.S.A and Canada- namely the Lok Sabha, the House of Representatives and the House of F Commons broadly follow the same system of composition. As of now, Members of the Lower Houses are elected from pre-designated constituencies through universal adult suffrage. The demarcation of these constituencies is in accordance with distribution of population, so as to accord equity in the value of each vote throughout the territory of the country. However, with the existence of constituent states of varying areas and populations, the representation accorded to these states in the Lower House becomes highly unequal. Hence, the composition of the Upper House has become an indicator of federalism, so as to more adequately reflect the interests of the constituent states and ensure a mechanism of checks and balances against the exercise of power by central authorities that might affect the interests of the constituent states.

• > KULDIPNAY AR v. U.0.¹. (SABHARWAL.CJ.] 57 ~ )' However, the area of focus is to analyse the role of second chambers in the context of centre-state relations i.e. embodiment of different degrees of federalism. This motive also illustrates the choice of the Indian Rajya Sabha, the U.S. Senate and the Canadian Senate, since these three nations are ;,-· notable examples of working federations over large territories and populations which have a high degree of diversity at the same time. The chief criterion of comparison will be the varying profile of representation accorded to the constituents units by the methods of composition and the differences in the powers vested with the 'Upper houses' in the constitutional scheme of the countries. Many Political theorists and Constitutional experts are of the opinion ~ .,, that in the contemporary context, 'Second Chambers' are losing their intended characteristics of effectively representing the interests of states and are c increasingly becoming 'national' institutions on account of more economic, social and political affinity developing between states. Hence, a comparative study of the working of bicameralism can assist the understanding of such dynamics within a Federal system of governance.

As mentioned earlier, the emergence of Second Chamber in a Federal D context was first seen in the Constitution of the United States. The thirteen original colonies had been governed under varying structures until independence from British Rule and hence the element of states' identity was carried into the subsequent Union. For purposes of the Federal legislature, there were concerns by the smaller states that the recognition of constituencies on the basis of population would accord more representation and power to the bigger and more populous states. Furthermore, in that era, voting rights were limited to white males and hence the size of the electorates were relatively larger in the Northern states as compared to the Southern states which had a comparatively higher proportion of Negroid population who had no franchise. Hence, the motives of Federalism and ensuring of more parity between states of different sizes resulted in a compromise in the drafting of the constitution. While the .Lower House of Congress, i.e. the House of representatives was ,#- to be constituted by members elected from Constituencies based or. population ~ distribution, the Senate was based on equal representation for all states. Initially, the two senators from each state were elected by the respective State legislatures but after the 17th amendment of 1913, Senators have been elected by open adult suffrage among the whole electorate of a state. This inherent motive of ensuring a counter-balance to the power of the federal government and larger states has persisted in the functioning of the Senate. This is reflected by the fact that the U.S. Senate has also been vested with certain

= 'p extra-legislative powers, which distinguish it from Second Chambers in other H

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A countries. Moreover, the Senate is a continuing body with senators being elected for 6 year terms and I/3rd of the members retiring or seeking re- election every 2 years. With the addition of more states to the Union, the "' numerical strength of the U.S. senate has also increased.

The Parliament of the Dominion of Canada in its present from was B established by the British North America Act, 1867 (also known as the Constitution Act. 1867). Canada to this day remains a constitutional monarchy with a parliamentary form of government, and a Governor-General appointed by the British sovereign acts as the nominal head of state. Prior to the 1867 Act, the large territories that now constitute Canada (with the exception of • .... c Quebec, which had the historical influence of French rule) were being administered as distinct territories. This act established a confederation among the constituent provinces. Hence, the parliament of the Dominion was in effect the federal legislature comprising of the House of Commons and the Senate. The Senate was given two major functions in the constitution. First, it was to be the chamber of "sober second thought". Such a limit should prevent the elected House of Cpmmons from turning Canada into a "mobocracy", as the framers of Confederation (the 1867 Act) saw in case of the U.S.A. The Senate was thus given the power to overturn many types of legislation introduced by the Commons and also to delay any changes to the constitution, thus 'preventing the Commons from committing any rash actions'. While the House of Commons was to be constituted through constituency based elections on the lines of the House of Commons in the British Parliament and the House of Representatives in the U.S. Congress, the Senate accorded equivalent representation to designated regions rather than the existing provinces. The number of senators from each state has consequently varied with changes in the confederation. However, the Canadian senators are appointed by the Governor-General in consultation with the Executive and hence the Canadian senate has structurally been subservient to the House of Commons and consequently also to the Federal executive to an extent. This l.. system of appointment of senators was preferred over an electoral system ~

owing to unfavourable experiences with elected 'Second Chambers' like the Legislative Councils in Ontario and Quebec, prior to the formation of the G Confederation in 1867. Another compelling factor behind the designing of a weak senate was the then recent example of the United States where some quarters saw the Civil war as a direct consequence of allowing too much power to the states. However, the role of the Canadian senate has been widely criticized owning to its method of composition. H Q' c

KULDIPNAYAR v. U.O.l. [SABHARWAL, CJ.] 59

> The genesis of the Indian Rajya Sabha on the other hand benefited from the constitutional history of several nations which allowed the Constituent A

assembly to examine the federal functions of an Upper House. However, 'bicameralism' had been introduced to the provincial legislatures under British rule in 1921. The Government of India Act, 1935 also created an Upper House in the Federal legislature, whose members were to be elected by the members of provincial legislatures and in case of Princely states to be nominated by B the rulers of such territories. However, on account of the realities faced by the young Indian union, a Council of States (Rajya Sabha) in the Union :)- Parliament was seen as an essential requirement for a federal order. Besides ; the former British provinces, there were vast areas of princely states that had to be administered under the Union. Furthermore, the diversity in economic c and cultural factors between regions also posed a challenge for the newly independent country. Hence, the Upper House was instituted by the Constitution framers which would substantially consist of members elected by state legislatures and have a fixed number of nominated members representing non-political fields. However, the distribution of representation between states in the Rajya Sabha is neither equal nor entirely based on population distribution. A basic formula is used to assign relatively more weightage to smaller states but larger states are accorded weightage regressively for additional population. Hence the Rajya Sabha incorporates unequal representation for states but with proportionally more representation given to smaller states. The theory behind such allocation of seats is to safeguard the interests of the smaller states but at the same time giving adequate representation to the lager states so that the will of the representatives of a minority of the electorate does not prevail over that of a majority.

In India, Article 80 of the Constitution of India prescribes the composition of the Rajya Sabha. The maximum strength of the house is 250 members, out of which up to 238 members are the elected representatives of the states and the Union territories (Article 80(1) (b)], and 12 members are nominated by the President as representatives of non-political fields like literature, science, art and social services [Articles 80( 1)(a) and 80(3)]. The members from the states are elected by the elected members of the respective G State legislative assemblies as per the system of Proportional representation by means of the single transferable vote [Article 80(4)]. The manner of election for representatives from Union territories has been left to prescription by parliament (Article 80(5)]. The allocation of seats for the various states and ,.,,,. union territories of the Indian Union is enumerated in the Fourth schedule to H

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

A the Constitution, which is read with Articles 4(1) and 80(2). This allocation has obviously varied with the admission and re-organisation of States.

Under Article 83(1 ), the Rajya Sabha is a permanent body with members being elected for 6 year terms and I /3rd of the members retiring every 2 years. These 'staggered terms' also lead to a consequence where the membership B of the Rajya Sabha may not reflect the political equations present in the Lok Sabha at the same time. The Rajya Sabha cannot be dissolved and the qualifications for its membership are citizenship of India and an age requisite of 30 years (Article 84]. As per Article 89, the Vice-president of India is the Ex-officio Chairman of the Rajya Sabha and the House is bound to elect a C Deputy Chairman. Articles 90, 91, 92 and 93 further elaborate upon the powers of these functionaries.

The American Senate on the other hand accords equal representation to all 50 states, irrespective of varying areas and populations. Under Article I, section 3 of the U.S. Constitution, two senators are elected from every state by an open franchise, and hence the total membership of the Senate stands at l 00. It is generally perceived in American society that the office of a senator commands more prestige than that of a member in the House of Representatives. As has been stated before, Senators were chosen by members of the respective State legislatures before the 17th amendment of 1913 by • which the system of open franchise was introduced. The candidates seeking election to the Senate have to be more than 30 years old and should have been citizens of the U.S.A. for more than 9 years and also should have legal residence in the state they are seeking election from. Senators are elected for 6 year terms, with I/3rd of the members either retiring or seeking re-election every 2 years. Senators can run for re-election an unlimited number of times. F The Vice President of the U.S.A. serves as the presiding officer of the Senate, who has a right to vote on matters only in case of a deadlock. However, for all practical purposes the presiding function is performed by a President Pro Tempore (Temporary presiding officer), who is usually the senator from the ... majority party with the longest continuous service. The floor leaders of the majority and minority parties are chosen at separate meetings for both parties G (known as Caucus/conference) that are held before each new session of Congress. The Democratic and Republican parties also choose their respective Whips and Policy committees in the Caucus. ... The Senate in the Canadian Parliament, is however not an elected body. H As indicated earlier, the Senators are appointed by the Governor-General on .

KULDIPNAY AR v. U.O.L [SABHARWAL. Cl] 61

;~ the advice of the Prime Minister. The membership of the house as of today is I05 and it accords equivalent representation to designated regions and not necessarily the constituent provinces and territories. The Prime Minister's decision regarding appointment of senators does not require the approval of anyone else and is not subject to review. The qualifications for membership are an age requirement of 30 years, citizenship of the Dominion of Canada by natural birth or naturalization and residency within the province from where appointment is sought. In the case of Quebec, appointees must be residents of the electoral district for which they are appointed. Once appointed, senators p hold office until the age of 75 unless they miss two consecutive sessions of Parliament Until 1965, they used to hold office for life. Even though the Canadian senate is seen as entirely dependent on the Executive owing to c party affiliations in appointments, the provision for holding terms till the age of75 does theoretically allow for the possibility of the Opposition to command a majority in the Senate and thereby disagree with the Lower House or the executive, since the members of the L:iwer House are elected for 5 year terms.

Now that a general idea has been gained on the methods of composition of the Second Chambers in India, U.S.A. and Canada, one can analyse the varying degree of representation accorded to constituent states in the three systems before proceeding to compare the policy scope as welf'as the practical and extra-legislative powers accorded to these chambers.

The idea of equal representation for states in the Senate was built into the American Constitution. The 17th amendment can hence be considered a reform in so far i:s it threw the election of senators open to the general public. However, the weightage accorded to each vote across states is inversely proportional to the population of the concerned state. Hence, actual representation per vote in the U.S. senate is higher for smaller states and likewise much lower for more populous states. On a theoretical as well as practical standpoint, this can create situations where the representatives of > the minority of the electorate can guide legislation over those of the majority.

Canada opted for a variation of the equivalent representation for designated regions and hence the representation accorded to provinces and territories was loosely based on population distribution. However, demographic changes over many decades impact the actual representation accorded to each territory. Furthermore, the ncminal system of appointment to the Canadian Senate creates the position that the will of the Senate will ordinarily flow with .....,. the federal executive. I~ H

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

A The unequal yet weighed proportional representation method adopted for Raj ya Sabha elections was a consequence of the analysis of representation in other federal bicameral legislatures. Even though it was recognized that smaller states required safeguards in terms of representation, it was further observed that enforcing equal representation for states like in the U.S.A. B would create immense asymmetry in the representation -0f equally divided segments of the electorate. Furthermore, the fonnation and re-organisation of states in India since independence has largely been on linguistic lines and other factors of cultural homogeneity among groups, where the sizes of these communities vary tremendously in comparison to each other. Hence, allocating seats to the states in the Rajya Sabha, either on equal terms or absolutely in accordance with population distribution would have been extreme solutions. Hence, the formula applied for the purposes of allocation of seats in the Fourth schedule seems to be a justifiable solution. This point can be illustrated with the trend that between 1962 and 1987, six new states were carved out of Assam. If India had followed the equal representation model, these new states, containing barely I% of India's population, would have had to be given 25% of all the votes in the upper chamber. Hypothetically, the more populous states would never have allowed this. Thus an essential feature of the working of federalism in India i.e. the creation of new states, some of which had violent separatist tendencies, would have been difficult under the U.S. principle of representation for each state equally. E The Irish Constitution like the Indian Constitution does not have strict federalism. Residence is not insisted upon under the Irish Constitution (See Constitution of India by Basu, 6th Edn. Vol. F). Similarly, in the case of Japanese Constitution, qualifications are prescribed by the statute and not by the Constitution. The various constitutions of other coubtries show that F residence, in the matter of qualific·ations, becomes a constitutional requirement only if it is so expressly stated in the Constitution. Residence is not the essence of the structure of the Upper House. The Upper House will not collapse if residence as an element is removed. Therefore, it is not a prerequisite ' of federalism.

G It can be safely 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, it cannot be said that federalism is 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 H Parliament, in its wisdom has chosen not to require residential qualification, ... .-

KULDIPNAYAR v. U.0.¹.[SABHARWAL,CJ.] 63 it would definitely not violate the basic feature of Federalism, Our Constitution A 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.·

Whether Basic structure doctrine available to determine validity of a statute B The question arises as to whether the ground of violation of the basic feature of the Constitution can be a ground to challenge the validity of an Act of Parliament just as it can be a ground to challenge the constitutional validity of a constitutional amendment. It has been submitted on behalf of Union of India that basic structure doctrine is inapplicable to Statutes. c Mr. Sachar was, however, at pains to submit arguments in support of affirmative plea in this regard. He referred to Dr. D.C. Wadhwa & Ors. v. State of Bihar & Ors., (1987] I SCC 378 as an earlier case wherein the Bihar Intermediate Education Council Ordinance, 1985 was struck down as unconstitutional and void on the basis that it was repugnant to the constitutional scheme.

In that case Government of Bihar was found to have "made it a settled practice to go on re-promulgating ordinances from time to time and this was done methodologically and with a sense of deliberateness". Immediately at the conclusion of each session of the State legislature, a circular letter would be sent by the Special Secretary in the Department of Parliamentary Affairs to all the Departments intimating to them that the session of the legislature had been got prorogued and that under Article 213 clause (2)(a) of the Constitution all the ordinances would cease to be in force after six weeks of the date of reassembly of the legislature and "that they should therefore get in touch with the Law Department and immediate action should be initiated" to get all the concerned ordinances re-promulgated before the date of their expny.

This Court in above fact situation held and observed as under :- G "When the constitutional provision stipulates that an ordinance promulgated by the Governor to meet an emergent situation shall cease to be in operation · at the expiration of six weeks from the reassembly of the legislature and the government if it wishes the provisions of the ordinance to be continued in fore~ beyond the H • period of six weeks has to go before the legislature which is the

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

A constitutional authority entrusted with the law-making function, it would most certainly be a colourable exercise of power for the government to ignore the legislature and to repromulgate the ordinance and thus to continue to regulate the life and liberty of the citizens through ordinance made by the executive. Such a strategem would be repugnant to the constitutional scheme, as it would enable the executive to transgress its constitutional limitation in the matter of law-making in an emergent situation and to covertly and indirectly arrogate to itself the law-making function of the legislature."

Noticeably the above view was taken about the Ordinances issued by the State of Bihar in the face of clear violation of the express constitutional provisions.

The learned counsel next referred to L. Chandra Kumar v. Union of India & Ors., [1997] 3 SCC 261 (7 Judges) (Paragraph 17 page 277 and Paragraph 99 at p./311 )], in which case not only was the Constitutional D amendment depriving High Court of its jurisdiction under Article 226 and 227 (from decisions of Administrative Tribunal) struck down on the ground that taking away judicial review from the High Courts violated the basic structure doctrine but even Section 28 of the Administrative Tribunal Act 1985, providing for "exclusion of jurisdiction of Courts except the Supreme Court under E Article 136 of Constitution" was also struck down.

In the above context, reference has also been made to Indra Sawhney v. Union of India & Ors., [2000] I SCC 168 at page 202 (Paragraph 65). A Bench of 3 Judges of this Court expressly held in that case that a State enacted law (Kerala Act on creamy layer) violated the doctrine of basic F structure. The question before the Court essentially was as to whether the right to equality guaranteed by the Constitution and the law declared by the Supreme Court could be set at naught by a legislative enactment. The issues raised also concerned the legislative competence of the State Legislature. In paragraph 65 of the judgment, it was observed as under:- G " .... Parliament and the legislature ;n this country cannot transgress the basic feature of the Constitutio•1, namely, the principle of equality enshrined in Article I⁴ of which Article 16( I) is a facet. Whether 1he creamy layer is not excluded or whether forward castes get included in the list of backward classes, the position will be the same, namely, that there will be a breach not only of Article 14 but of the basic • structure of the Constitution. The non-exclusion of the creamy layer •

' ,.. KULDIPNAYAR v. U.0.¹. [SABHARWAL,CJ.] 65 or the inclusion offorward castes in the list of backward classes will, therefore, be totally illegal. Such an illegality offending the root of the Constitution of India cannot be allowed to be perpetuated even by constitutional amendment. The Kerala Legislature is, therefore, least competent to perpetuate such an illegal discrimination. What even Parliament cannot do, the Kerala Legislature cannot achieve." B It is well settled that legislation can be declared invalid or unconstitutional only on two grounds namely, (i) lack of legislative competence and (ii) violation of any fundamental rights or any provision of the Constitution (See Smt. Indira Nehru Gandhi v. Raj Narain, [I975] Supp SCC I). In other cases relied upon by Mr. Sachar where observations have been made about a statute being contrary to basic structure, the question was neither raised nor c considered that basic structure principle for invalidation is available only for constitutional amendments and not for statutes.

A.N. Ray, CJ, in Indira Nehru Gandhi's case (supra), observed in paragraph 132 as under: - D "The contentions on behalf of the respondent that ordinary legislative ·~ measures are subject like Constitution Amendments to the restrictions of not damaging or destroying basic structure, or basic features are utterly unsound. It has to be appreciated at the threshold that the contention that legislative measures are subject to restrictions of the E theory of basic structures or basic features is to equate legislative measures with Constitution Amendment.

(emphasis supplied)"

In paragraph 153 of his judgment, he ruled as under: - F

• "The contentions of the respondent that the Amendment Acts of 1974 and 1975 are subject to basic features or basic structure or basic framework fails on two grounds. First, legislative measures are not subject to the theory of basic features or basic structure or basic framework. Second, the majority view in Kesavananda Bharati's case G (supra) is that the Twenty-ninth Amendment which put the two statutes in the Ninth Schedule and Article 31-B is not open to challenge on the ground of either damage to o_r destruction of basic features, basic str_ucture or basic fra·mework or on the ground of vil)lation of i.. . ,,;. H :>~ i ...

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

A fundamental rights."

(emphasis supplied)

In same case, K.K. Mathew, J. in Paragraph 345 of his separate judgment ruled as under: - B "I think the inhibition to destroy or damage the basic structure by an amendment of the Constitution flows from the limitation on the power of amendment under Article 368 read into it by the majority in Bharati 's case (supra) because of their assumption that there are certain fundamental features in the Constitution which its makers intended to c remain there in perpetuity. But I do not find any such inhibition so far as the power of Parliament or State Legislatures to pass laws is concerned. Articles 245 and 246 give the power and also provide the limitation upon the power of these organs to pass laws. ft is only the specific provisions enacted in the Constitution which could operate m limitation upon that power. The preamble, though a part of the Constitution, is neither a source of power nor a limitation upon that power. The preamble sets out the ideological aspirations of the people. The essential features of the great concepts set out in the preamble are delineated in the various provisions of the Constitution. It is these specific provisions in the body of the Constitution which determine the type of democracy which the founders of that instrument established; the quality and nature of justice, political, social and economic which was their desideratum, the content ofliberty of thought and expression which they entrenched in that document, the scope of equality of status and of opportunity which they enshrined in it. These specific provisions .:!nacted in the Constitution alone can determine the basic structure of the Constitution as established. These specific provisions, either separately or in combination determine the content of the great concepts set out in the preamble. It is impossible to spin out any concrete concept of basic structure out of the gossamer concepts set out in the preamble. The specific provisions of the G Constitution are the stuff from which the basic structure has to be woven. The argument of Cou11sel fur the respondent proceeded on the assumption that there are certain norms for free and fair election in' an ideal democracy and the law laid down by Parliament or State Legislatures must be tested on those norms and, if found wanting, must be struck down. The norms of election set out by Parliament or ..... H

KULDIPNA YAR v. U.0.¹. (SABHAR WAL, CJ.] 67 "'. State Legislatures tested in the light of the provisions of the A Constitution or necessary implications therefrom constitute the law of the land. That law cannot be subject to any other test, like the test of free and fair election in an ideal democracy."

(emphasis supplied) B In Paragraph 356, he proceeded to rule as under: -

"There is no support from the majority in Bharati's case (supra) for p the proposition advanced by Counsel that an ordinary law, if it damages or destroys basic structure should be held bad or for the proposition that a constitutional amendment putting an Act in the c Ninth Schedule would make the provisions of the Act vulnerable for the reason that they damage or destroy a basic structure constituted not by the fundamental rights taken away or abridged but some other basic structure. And, in principle, I see no reason for accepting the correctness of the proposition." D (emphasis supplied) JI In same case, Chandrachud, J. in Paragraph 691 of his separate judgment ruled, as under: -

"Ordinary laws have to answer two tests for their validity: (1) The E law must be· within the legislative competence of the legislature as defined and specified in Chapter 1, Part XI of the Constitution, and (2) it must not offend against the provisions of Article 13(1) and (2) of the Constitution. "Basic structure", by the majority judgment, is not a part of the fundamental rights nor indeed a provision of the F Constitution. The theory of basic structure is woven out of the ~ conspectus of the Constitution and the amending power is subjected •• to it because it is a constituent power. "The power to amend the fundamental instrument cannot carry with it the power to destroy its essential features-this, in brief, is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of ordinary laws made under the Constitution."

(emphasis supplied)

In Paragraph 692, he would rule as under: - ,,, .J, H ~

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

A 'There is paradox, because certain limitations operate upo!1 the 1;0

higher power for the reason that it is a higher power. A constitutional amendment has to be passed by a special majority and certain such amendments have to be ratified by the legislatures of not less than one-half of the States as provided by Article 368(2). An ordinary legislation can be passed by a simple majority. The two powers, B though species of the same genus, operate in different fields and are therefore subject to different limitations."

(emphasis supplied) 4

A Constitution Bench (7 Judges) in State of Karna/aka v. Union of C India & Anr., [1977] 4 SCC 608 held, per majority, (paragraph 120) as under:-

" ..... .in every case where reliance is placed upon it, in the course of an attack upon legislation, whether ordinary or constituent (in the sense that it is an amendment of the Constitution), what is put forward as part of "a basic structure" must be justified by references to the express provisions of the Constitution ..... "

In Paragraph 197, it was observed as under: - 0

" ...... if a law is within the legislative competence .of the Legislature, it cannot be invalidated on the supposed ground that it has added something to, or has supplemented, a constitutional provision so long as the addition or supplementation is not inconsistent with any provision of the Constitution ...... "

The following observations in Paragraph 238 of same judgment are also germane to the issue: - "Mr. Sinha also contended that an ordinary law cannot go against the basic scheme or the fundamental backbone of rhe Centre-State relationship as enshrined in the Constitution. He put his argument in this respect in a very ingenious way because he felt difficulty in placing it in a direct manner by saying that an ordinary law cannot violate the basic structure of the Constitution. In the case of Smt Indira Nehru Gandhi v. Shri Raj Narain such an argument was expressedly rejected by this Court.... "

The doctrine of 'Basic Feature' in the context of our Constitution, thus, H does not apply to ordinary legislation which has only a dual criteria to meet,

KULDIPNAYAR v. U.0.¹. [SABHARWAL,CJ.] 69 ,,,. namely: A (i) It should relate to a matter within its competence; .. (ii) 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. B Reference can also be made in this respect to Public Services Tribunal Bar Association v. State ofU.P. & Anr., [2003] 4 SCC 104 and State ofAndhra b Pradesh and Ors. v. McDowell & Company & Ors., [1996] 3 SCC 709 . • The basic structure theory imposes limitation on the power of the Parliament to amend the Constitution. An amendment to the Constitution c 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 on the ground of violation of the basic structure of the Constitution is thus not available to the petitioners. D As stated above, 'residence' is not the constitutional requirement and, !~ therefore, the question of violation of basic structure does not arise.

Argumenl of conlempormy legislation and Constitutional Scheme E Mr. Nariman further submitted that the Constitution and the Representation of People Act, 1951 are to be read as an "integral scheme". In this context, reference was made to the fact that the Provisional Parliament that passed the Representation of People Act, 1950 and the Representation of People Act, 1951 was the same as the Constituent body that had passed and adopted the Constitution. F µ. In support of the contention about the integrated scheme of 'Election', >'b Mr. Nariman would first refer to N.P. Ponnuswami v. Returning Officer, Namakkal c;onstituency & Ors., AIR (1952) SC 64: [I 952] SCR 218. In that case, the appellant had challenged the dismissal by the High Court of his petition under Article 226 of the Constitution praying for a writ of certiorari G to quash the order of the Returning Officer rejecting his nomination paper in an election, on the ground that it had no jurisdiction to interfere with the order oi the Returning Officer by reason of the provisions of Article 329(b) of the Constitution. - ,.¹ H

70 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R. . " A Justice Fazal Ali, speaking for the Bench, observed as under:

"Broadly speaking, before an election machinery can be brought into operation, there are three requisites which require to be attended to, namely, ( 1) there should be a set of laws and rules making provisions with respect to all matters relating to, or in connection with, elections, B and it should be decided as to how these laws and rules are to be made; (2) there should be an executive charged with the duty of securing the due conduct of elections; arid (3) there should be a judicial tribunal to deal with disputes arising out of or in connection 0 with elections. Articles 327 and 328 deal with the first of these requisites, ..... Article 324 with the second and Article 329 with the third requisite. c ..... Part XV of the Constitution is really a code in itself providing the entire ground-work for enacting appropriate laws and setting up suitable machinery for the conduct of elections.

"The Representation of the People Act, 1951, .which was passed.by Parliament under Article 327 of the Constitution, makes detailed provisions in regard to all matters and all stages connected with elections to the various legislatures in this country.

"The fallacy of the argument lies in treating a single step taken in furtherance of an election as equivalent to election. The decision of this appeal however turns not on the construction of the single word "election", but on the construction of the compendious expression - "no election shall be called in question" in its context and setting, with due regard to the scheme of Part XV of the Constitution and the Representation of the People Act, 1951. Evidently, the argument has no bearing on this method of approach to the question posed in this appeal, which appears to me to be the only correct method."

(Emphasis supplied) ..... .:;- In Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors., [1978] I SCC 405 (427)], a similar view was taken in the following words: - "The paramount policy of the Constitution-framers in declaring that no election shall be called in question except the way it is provided for in Article 329(b) and the Representation of the People Act, 1951, compels us to read, as Fazal Ali J. did in Ponnuswami, the Constitution H ... .,

KULDIPNA YAR v. U.0.¹. (SABHARWAL, CJ.) 71 and the Act together as an integral scheme. The reason for postponement of election litigation to the post-election stage is that elections shall not unduly be protracted or obstructed. The speed and promptitude in getting due representation for the electors in the legislative bodies is the real reason suggested in the course of judgment.

38. Article 324, which we have set out earlier, is a plenary provision vesting the whole responsibility for national and State elections and, therefore, the necessary power to discharge that function. It is true that Article 324 has to be read in the light of the constitutional scheme and the 1950 Act and the 1951 Act."

The above view was reiterated by the Constitution Bench in Gujarat c Assembly Election case [2002] 8 SCC 237. By reading the Constitution and the Representation of People Act together as constituting a scheme, it was observed as under: -

"(e) Neither, under the Constitution nor under the Representation of D the People Act, any period of· limitation has been prescribed for holding election for constituting Legislative Assembly after premature dissolution of the existing one. However, in view of the scheme of the Constitution and the Representation of the People Act, the elections should be held within six months for constituting Legislative Assembly E from the date ofdissolution of the Legislative Assembly."

Mr. Narinian submitted that the same Parliamentary body which passed the Constitution, acting as the Provisional Parliament under Article 379 (since repealed), also passed the law with regard to who was to be the representative of a State in the Council of States. He pointed out that Section 3 of the RP F Act 1951, as originally enacted, while prescribing "Qualifications for membership of the Council of States" had made it essential that the person offering himself to be chosen as a representative of any State in the Council of States must be "an elector" for a Parliamentary .Constituency "in that State", which.principle applied uniformly to Part A or Part B States (other than the State of Jammu & Kashmir). In the original enactment, there was a separate G arrangement for Part C States, some of which were put in different groups to provide for unified constituencies for returning a common representative (for the State or the Group) to the Council of States, though the qualification in the nature of compulsory status of elector "in that State" would apply there also, with some modification here and there, in that, generally the person was H

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

A required to be ''an elector for a Parliamentary constituency in that State or ... in any of the States in that group, as the case may be". In the case of the States of Ajmer and Coorg or of the States of Manipur and Tripura, which formed two separate groups for the purpose in the Council of States, the arrangement was to rotate the seats and so it was essential for the candidate to be "an elector for any Parliamentary constituency in the State in which the election of such representative is to be held".

Mr. P.P. Rao, Senior Advocate appearing for the State of Tamil Nadu had a similar take on the subject and pressed in aid the principle of 'contemporanea expositio '. His submission was that this principle is relevant for interpreting the words "the representative of each State" in Article 80(4) of the Constitution. His argument was that the RP Acts 1950 and 1951 are contemporaneous legislations made by the Constituent Assembly itself acting as provisional Parliament and that they are a useful aid for the interpretation of Articles 79 and 80, just as subordinate legislation is for interpreting an Act. D In the above context, Mr. Rao referred to various decisions. He would urge that the following words, extracted from Paragraph 236 in /. C. Golak Nath & Ors. v. State of Pwyab & Anr., [1967] 2 SCR 762 be borne mind:

"The best exposition of the Constitution is that which it has received from contemporaneous judicial decisions and enactments. We find a E rare unanimity of view among judges and legislators from the very commencement of the Constitution that the fundamental rights are within the reach of the amending power. No one in the Parliament doubted this proposition when the Constitution First Amendment Act of 1951 was passed. It is remarkable that most of the members of this F Parliament were also members of the Constituent Assembly. "

(emphasis supplied)

He would then refer to Hanlon v. The Law Society, [1980] 2 All ER 199, .. _

218 (H.L.)], it was held as under: G "A study of the cases and of the leading textbooks Craies on Statute Law (7th Edn., 1971, p. 158), Maxwell on the Interpretation of Statutes (12th Edn., 1969, pp 74-75) Halsbury's Laws (3rd Edn.) 1961 Vol. 36, paragraph 606, p. 401) appears to me to warrant the formulation of the H following propositions:

. . . KULDIPNAYAR v. U.0.¹.[SABHARWAL,CJ.)

(1) Subordinate legislation may be used in order to construe the parent Act, but only where power is given to amend the act by 73 A

regulations or where the meaning of the Act is ambiguous. \..

74 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R. ' A construction, commonly referred to as practical construction, although • • not controlling, is nevertheless entitled to considerable weight; it is highly persuasive. In Baleshwar Bagarti v. Bhagirathi Dass, !LR 35 Cal. 701 at 713 the principle, which was reiterated in Mathura Mohan Saha v. Ram Kumar Saha, ILR 43 Cal. 790: AIR 1916 Cal 136 has been B stated by Mookerjee, J., thus:

It is well-settled principle of interpretation that courts in construing a. statute will give milch weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to construe, execute and apply it.. .. ! do not suggest for a moment that c such interpretation has by any means a controlling effect upon the courts; such interpretation may, if occasion arises, have to be disregarded for cogent and persuasiYe reasons, and in a clear case of error, a court would without hesitation refuse to follow such construction."

D The State of U.P. & Ors. v. Babu Ram Upadhya, [1961] 2 SCR 679(CB), it was observed as under:

"Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act, and are to be E judicially noticed for all purposes of construction or obligation: see Maxwell "On the Interpretation of Statutes", 10th edn., pp. 50-51." '

In State of Tamil Nadu v. Mis. Hind Stone & Ors., [1981] 2 SCC 205, it was held as under: F "The Mines and Minerals (Regulation and Development) Act is a law enacted by Parliament and declared by Parliament to be expedient in the public interest. Rule 8-C has been made by the State Government by notification in the official Gazette, pursuant to the power conferred upon it by Section 15 of the Act. A Statutory rule, while ever ' 1 .. G subordinate to the parent statute, is otherwise, to be treated as part of the statute and as effective. "Rules made under the statute must be treated for all purposes of construction or obligation exactly as if they were in the act and are to be of the same effect as if contained in the Act and are to be, judicially noticed for all purposes of construction or obligation": (State of U.P. v. Babu Ram Upadhya, H [1961] 2 SCR 679, 702; see also Maxwell: INTERPRETATION OF

•• KULOIPNA YAR v. U.0.¹. [SABHARWAL, CJ.] 75 STATUTES, I Ith Edn. pp. 49-50). So, statutory rules made pursuant A to the power entrusted by Parliament are law made by Parliament within the meaning of Article 302 of the Constitution."

In Commissioner ofIncome Tax, Jullundur v. Ajanta Electricals, Punjab, [ 1995] 4 sec 182, it was ruled thus: B "Though the rule cannot affect, control or derogate from the section of the Act, so long as it does not have that effect, it has to be regarded as having the same force as the section of the Act." '~ The submission, thus, is that the principle of contemporanea expositio is relevant for interpreting the words "the representatives of each State" in c Article 80(4) of the Constitution with reference to contemporary legislation made by the Constituent Assembly itself acting as provisional Parliament just as subordinate 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 D constitutional rule. It does not have the sanctity or normative value of Constitutional Law. When the Act of 19 51 was debated, no one argued that the residence qualification had already been decided upon by the Constituent Assembly and, therefore, no debate should take place. The difference between the original and derived power is the basis of the doctrine of basic structure. E The principle of "contemporanea expositio ', is totally irrelevant if not misleading for present purposes. If the Constitution had used an ambiguous expression, which called for interpretation, the manner in which 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 F 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 provisional Parliament in 1951 did prescribe residence inside the State as a qualification for Membership G 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. H ~ .;.

76 SUPREME COURT REPORTS (2006) SUPP. 5 S.C.R.

A The provision of residence existed, prior to impugned amendment, in a • Parliamentary law, i.e., the Representation of the People Act, 1951 (and not the Constitution). 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. B It has been argued that it was the Provisional Parliament, which succeeded the Constituent Assembly, that had passed the RP Act, 1951. However, if that reasoning were to be accepted, it would not mean that all the .q laws passed by the Provisional Parliament enjoy the same status as the c Constitution or some such special status. This would be neither a healthy nor a permissible approach. 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. Over the years, there have been several amendments to the RP Act, 1950 and RP Act, 1951. If the argument of the petitioner were to be correct, all the amendments made so far in these Acts would have required Constitutional amendments.

While there need be no quarrel with the proposition that the Constitution and the RP Acts form an integrated scheme of elections, it does not follow that on this account the domiciliary requirement in Section 3 RP Act 1951, as originally enacted, is part of the said scheme so as to be treated a constitutional requirement.

Restrictions under Article 368

F It has been submitted that Section 3 of RP Act, 1951, as it stood before amendment, read with Article 80(4), had ensured the "representation of States" in Parliament. Referring to proviso (d) in Article 368(2), it has been argued that even a Constitutional amendment making any change in representation of States in Parliament cannot be effectuated without the ratification by one half of the States Legislatures. On this premise, it has been submitted that it

- G should follow, as a necessary corollary, that the change made in Section 3, RP Act, 1951 is one that no longer ensures, by Parliamentary law, the representation of States in Parliament, or in any case one that makes a change in the existing law, and thus an amendment that could not be effectuated simply by amending Section 3 of the RP Act, 1951. H Article 368 relates to power of Parliament to amend the Constitution and ,et "

KULDIPNAYAR v. U.0.¹. [SABHARWAL,C.I.] 77 the procedure therefor. The Proviso in question puts limits on the power of _A Parliament to amend the Constitution. Article 368(2), to the extent relevant, reads as under: -

"An amendment of the Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total B membership of that House and by a majority of not less than two- thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: c Provided that if such amendment seeks to make any change in -

(a) xxxx (b) xxxx (c) xxxx D (d) the representation of States in Parliament, or ·.i> (e) xxxx,

the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolution to that effect passed E by those Legislatures before the Bill making provision for such amendment is presented to the President for assent."

The above provision shows that subject to some conditions and procedural requirements, the Parliament is competent to amend the Constitution except, inter alia, in the event the amendment sought to be made, changes F "the representation of States in Parliament". In that case, the amendment Bill ~· would require, before presentation to the President for assent, ratification by the Legislatures of not less than one half of "the States". A question thus has been raised as to the scope of the expression "representation of the States" occurring in Proviso (d) to Article 368 (2). G The argument is without merit in the context in which it has been made. 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) are not synonymous or employed in same sense. These expressions are materially different and used in different context in the two provisions. This H

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

A 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 I, having declared in its sub-Article (I) that India "shall be a B Union of States", provides through sub-Article (2) as under:-

"The States and the territories thereof shall be as specified in the First Schedule." < •

The First Schedule mentions the names of the States and Union C Territories and specifies their respective territories. Article 2 empowers the Parliament to admit, by law into the Union of India, or to establish new States. Article 3 empowers Parliament, by law, inter alia, to "form a new State", "increase the area of any State", "diminish the area of any State" or "alter the name of any State". This power has been used many a time by Parliament to D reorganize the States and their territories. Article 4 is of great relevance for purposes at hand. It reads as under: -

"Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters.- (I) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First E Schedule and the Fourth schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem F necessary.

(2) No such law as aforesaid shall be deemed to be an amendment of the Constitution for the purposes of article 368."

Article 4 thus also uses the expression "representation in Parliament". G It specifically 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.

H Article 80(1) prescribes in clause (b) that, besides the 12 members

KULDIPNAYAR v. U.0.¹. [SABHARW AL, CJ.] 79 nominated by the President, the Council of States shall consist of not more than 238 "representatives" of States and Union Territories. If an amendment were to increase or decrease this composition, it would result in change in the ratio of representation of States in Parliament.

The provision contained in Article 80(1 )(b ), in so far as it pertained to the maximum number of members constituting the House has remained unchanged ever since it was adopted in the Constitution by the Constituent Assembly on 26th November, 1949. But this figure of seats of the .. > representatives of States (and Union Territories) was subject to allocation to the States and Union Territories in terms of the Fourth Schedule, as provided in Article 80 (2). The Fourth Schedule provided for the allocation of seats in the Council of States and the total number of seats indicated therein has varied from time to time, subject to the ceiling of 238, as given in Article 80(IXb).

In the Fourth Schedule, as originally enacted, the seats allocated to States were 205. By way of the Constitution (Seventh Amendment) Act, 1956, D which came into effect on 1st November, 1956, the Fourth Schedule was substituted and consequently, the total number of seats allocated in the Council of States was increased to 220, also indicating the distribution thereof among the various States. This figure of "220" was periodically increased by the Constitution (Thirty Sixth Amendment) Act, 1975 and various States Reorganisation Acts passed by the Parliament from time to time, lastly by the E Goa, Daman and Diu Reorganisation Act, 1987 which came into effect on 30 May I987, whereby State of Goa was inserted into the Fourth Schedule and the figure 'increased to '233'. The figure "233" occurs in the Fourth Schedule as on date. F It has been submitted that every time there has been reorganization of States, the consequential amendments in the Fourth Schedule have been brought about through Constitutional amendments, in accord with the provisions contained in Article 368, in particular Proviso (d) thereof. It has been pointed out that even the existing representatives of the States affected by the reorganization were reflected by name in the Constitutional amendments G and allocated to the States, having regard to their respective domicile.