KULDIP NAYAR v. UNION OF INDIA AND ORS.

The argument based on the provision of the Acts relating to Reorganization of States does not carry the matter further at all. Obviously, at the time of creation of new States, the existing members of the Council of States had to be allocated to the old or new States. This was done in H

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A conformity with the then existing principles underlying the relevant law. The documents placed before the Court show that specific consideration of a residential requirement was never made after Paragraph 6 of the Fourth Schedule in the first draft Constitution dated 27th October 1947 had been deleted on 11th February 1948.

B The amendment of the Constitution can affect "representation of the States" in Parliament, within the meaning of the proviso extracted above, in more ways than one which we will presently show. • • Article 80(4) prescribes the manner of voting and election of the representatives of States for Council of States in the following terms: -

"The representatives of each state in the Council of states shall be elected by the elected m<:mbers of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote." D If the above-mentioned prescribed manner of voting and election is sought to be changed, for example, by including members of Legislative Councils in such States as have legisl.ative Councils or by change in the system of proportional representation, that would also have the effect of changing the representation of the States. E Article 83(1) provides as under: -

"The Council of States shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law." F If the duration of Council of States as provided in Article 83(1) is sought to be changed such amendment would also affect the representation of the States.

G Fourth Schedule to the Constitution lays down the number of persons who would represent each State in the Council of States. This balance between the various States is not at all affected by way of !he legislation impugned in the writ petitions at hand. In the instant case, the amendments made by the impugned Act relates only to the residential qualification of the 'representatives' and is not concerned with the "representation of the States" H in Parliament.

KULDIPNAYAR v. U.O.l. [SABHARWAL.Cl] 81

The argument that the impugned amendment affects the "representation" A of the States in the Council of States is not correct. The States still elect their representatives to the Council of States through the elected members of their respective legislative assemblies as provided in the Constitution. There was, therefore, no need for a constitutional amendment as has been contended.

Distinction between the two Houses B Mr. Nariman, learned Senior Advocate pointed out that under un- amended Section 3 of the RP Act 1951, one of the requisite qualifications for a person offering his candidature for membership to the Council of States, since beginning had been that he must be "an elector" for a Parliamentary C Constituency in the State or Union Territory which he seeks to represent. On the other hand, as per Section 4 of the RP act 1951, in the case of the House of the People, a person is qualified to be chosen to fi_ll a seat in that House if he is "an elector for any Parliamentary constituency"; that is to say, one can get elected as people's representative in the House of the People for a constituency in one particular State even though one is an elector registered as such in a Parliamentary constituency in another State.

He pointed out that the composition of the House of the People, as per Article Sl(J)(a), is different, since it consists of "members chosen by direct election from territorial constituencies in the States'', such members not representing, nor expected to represent, the States from which they are so chosen. This is why the 'Qualifications for the membership of the House of the People', as prescribed in Section 4 of the RP Act 1951, have always pennitted "an elector for any Parliamentary constituency" to get chosen to fill a seat in the House of the People.

The argument is that by the impugned amendment in Section 3, the qualification for Membership of the Council of States is now "equated" with . , that of the House of the People, the only difference remaining being the manner of election, the former by indirect election and the latter by direct election.

While Section 3 has been amended to substitute the words "in that G State or territory" with the words "in India", Section 4 remains the same as before. The result is that the point of distinction between the characters of representation in the two Houses has become obliterated.

The word "elector" has been defined in Section 2 (e) of RP Act 1951 H

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A and means "a person whose name is entered in the electoral roll of that constituency for the time being in force" and who is not subject to any of the disqualifications mentioned in Section 16 of the RP Act, 1950.

The above mentioned statutory provisions, according to Mr. Nariman, unmistakably.show that the test of "ordinary residence" has been woven into B the constitutional scheme as an essential qualification for membership of either House of Parliament, which can be residence anywhere in India for House of the People, but must be residence in the State one seeks to represent in the Council of States, as required in Section 3 of the 1951 Act as it existed till the impugned amendment brought about a qualitative change. · c Mr. Nariman contended that the impugned amendment has destroyed the essential characteristic of the Council of States because a person who is an elector, and so an ordinary resident, in any constituency in India, not necessarily of the particular State can now be chosen to be a representative of such State, only by virtue of being so elected to the Council of States by D the Members of the Legislative Assembly of such State. According to him, the need for a Second Chamber viz. the Council of States has become redundant, in that it now merely duplicates the House of the People, since a person is qualified to be chosen as a representative of any State in the Council of States if he is an elector for a Parliamentary constituency in that State or in any other State. E He further argued that as a result of the impugned amendment, the person elected to the Council of States, if he is at all "representative" of anyone, he is only a representative of the State Assembly that elected him and not a "representative" of the State, as he was required to be under Article

80. The intendment of the Constitution that he should be a representative of F the State is required to be reflected in some statutory requirement as to qualification qua the person elected and the State, be it birth, residence for some period in the past or at present, or ordinary residence. The law enacted by Parliament had to prescribe some connection between the person standing for election and the State that he is to represent in the Council of States, G which is now missing. ... These arguments do not appeal to us. Article 79 leaves no doubt about the fact that House of the People and the Council of States are both "Houses" of Parliament. The names given to the two Houses are proper nouns and do not spell out any right or obligation, much less limitations on Parliament's H legislative power available to it under Article 84(c). •

KULDIPNA YAR v. U.0.1. [SABHARWAL, CJ.] 83 Parity in the matter of qualification to the ·extent concerning residence of a person seeking to be elected as member of either House does not make one House duplicate of the other. Their role, functions, powers or prerogatives, especially in the matter of legislation, remain unchanged.

Mr. Nariman also urged that Article 80 of the Constitution (Composition of the Council of States) be read in contrast of Article 81 (Composition of the B House of the People). He was at pains to point out that under Article 80, the Council of States must consist of "representatives" of the States and Union Territories and that it is only the representatives of "each State" in the • . Council of States who are to be elected by the elected Members of the Legislative Assembly of the State [Article 80(4)]. On the other hand, under c Article 81, the House of the People consists of "members" chosen by direct election from the territorial constituencies in the State, i.e. chosen by the electors in one of the Parliamentary Constituencies in India. -<

His argument is that if the intention was that the body called the Council of States was also to consist of members "chosen", then Article 80 D would have used the expression 'members chosen by elected representative of State Legislative Assemblies and Union Territories' instead of the expression "representatives of the States and Union Territories." ' He proceeded to build up on the argument by submitting that the ... expression "representatives of the State" in Article 80(l)(b) and Article 80(2), E and the expression "representatives of each State" in Article 80(4), are not merely tautologous or mere surplussage, but intended to be words of critical and crucial significance.

Almost on similar lines, Mr. P.P. Rao, learned counsel for State of Tamil Nadu, submitted that the Democratic Republic constituted by the Constitution F of India, as reflected in the expression used in the Preamble - "We, the people \ of India" - means 'We the people of the States and Union Territories' - in other words, th\! citizens of India, inhabitants of the States and the Union Territories.

It has been argued that the principles underlying "the_ Hou~ of the G People" are evident from Articles 79 and 81. It is a House of the"People of India as a whole. Its members are chosen by direct election from territurial constituencies in the States. To become a member one has to be an'Indian first. A non-Indian cannot represent the people of India. Only an elector in ; any part of India will have the capacity to represent the people of India. H ~

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A It has been submitted, the term "the Council of States" in Articles 79 ~ 11:::::

and 80, likewise means the House that represents the States. Each State is a territorial constituency by itself for this House. It is argued that only a person belonging to a State will have the capacity to represent the State in the Upper House and that a person could claim to belong to a State only by birth, ., domicile or residence. On this premise, it has been submitted that some such visible nexus between the State and the person seeking to be its representative is a must in the scheme of the Constitution. ..-- It is further the argument of th..: learned Counsel for the petitioners that • the words "representatives of the States" in Article 80(1 )(b) and(2) and the .,. c words "representatives of each State in the Council of States" in Article 80(4) need to be interpreted in such a manner that it tends to strengthen the basic structure of the Constitution, having due regard to its federal character and the foundational feature of democracy, namely the system of self-governance.

In above context, the Counsel would rely upon Sub-Committee on D Judicial Accountability v. UOI & Ors., ( 1991] 4 SCC 699 and P. JI. Narasimha Rao v. State (CBI/ SPE), (1998] 4 SCC 626.

In Sub-Committee on Judicial Accountability v. Union of India (supra), this Court ruled thus:

E "In interpreting the constitutional provisions in this area the Court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution." - The following observations made in paragraph 47 in P. JI. Narasimha Rao 's case (supra) have been relied upon: F "As mentioned earlier, the object of the immunity conferred under Article 105(2) is to ensure the independence of the individual legislators. Such independence is necessary for healthy functioning of the system of parliamentary democracy adopted in the Constitution. Parliamentary '- democracy is a part of the basic structure of the Constitution. An G interp~~tation of the provisions of Article 105(2) which would enable a Mem·b~r of Parliament to claim immunity from prosecution in a cr1minal court for an offence of bribery in connection with anything said by him or a vote given by him in Parliament or any committee thereof and thereby place such Members above the law would not only be repugnant to healthy functioning of parliamentary democracy H •.

KULDIPNAYAR v. U.0.1. [SABHARWAL,C.I.] 85 but would also be subversive of the rule of law which is also an A essential part of the basic structure of the Constitution. It is settled law that in interpreting the constitutiona) provisions the court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution. (See: Sub-Commiltee on Judicial Accouniabili(v v. Union of India, [ 1991] 4 sec 699 sec at B p. 719.)"

It has been argued by Mr. Nariman that it is because of the scheme of the Constitution and the RP Act, 1951, that representation of the States in the Council of States has to be secured and assured viz. by insisting upon, as a qualification, some link or nexus between the person elected to the Council C of States by the State Assembly and the State which he is to represent in the Council of States. That connection, according to him, was, and for 53 years remained a connection, by way of "ordinary residence" in the State. Section 3 of the RP Act, 1951, fulfilled the role of not only providing a qualification but defining who was to be the "representative of each State" in Article 80(4). D It has been argued that if by electing a person as a Member of the f Council of States by a particular State Assembly itself made that person a 'representative' of that State then it was unnecessary to enact Section 3 of the RP Act. Therefore, according to the argument, it has to be concluded that the Provisional Parliament (which had also drafted and enacted the Constitution), when enacting Section 3 Of the RP Act, had thought it necessary to define the "representative of the State", with reference to his residence "in that State".

The above mentioned argument to the extent founded on the principle of basic structure need not detain us any further as it is the same argument as dealt with in the context of federal structure, albeit with a slightly different shade. Moreover, the link factor is retained by the impugned amendments inasmuch as the candidate for the election to the Council of States is now required to be an elector for Parliamentary constituency. Therefore, the linking factor is made broad based. G Article 80 shows that the Council of States consists of 12 Members nominated by the President and 238 representatives of the States and Union Territorie~ The representatives fill the seats in accordance with Article 80(2). Both, the membt:rs nominated by the President and the representatives elected by the State Legislatures are collectively 'Members' of the Council of States, as clearly flowing from Article 83. H

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A Further answer to this argument can be found in Article 84 itself, ~hich refers to 'membership' of the Parliament, and this covers the Council of States as well as the House of the People. Then, Article 84 also uses the word 'chosen' with reference to filling a seat in Parliament, in both the Council of States as well as House of the People. Therefore, a representative of the State B is as much a Member of Parliament as is a member of the House of the People. The expression "representatives" is equally used with reference to the House of the People. •

There is thus no distinction between the expressions 'members' and ~ 'representatives'. The submissions of the learned Counsel are untenable. The .,. C plea that the choice of expression "representative" in relation to the Council of States as against word "member" used in relation to the House of the People holds the key is also liable to be rejected.

Relevance of the word "Each"

D It is the submission of Mr. Nariman that whilst it is open to Parliament to prescribe by laying the qualifications for being chosen to the Council of States, the prescribed qualifications must be such as to ensure that the person so chosen is a representative of that State, the Assembly of which has elected him. He submitted that the use of the word "each" in Article 80(4), in relation to representation of States in the Council of States was not without E significance, in as much as the stress is on providing representation to "each State" so as to give to the House the character of a body representing the States.

Emphasis has been placed on the words representatives of"each State" in Article 80(4) of the Constitution. In Upper Chambers of other Federal F Constitutions, like the Senate in United States, members are elected by the electorate by treating each State as a Unit equal of the other. There would be no doubt in such Constitutions that the elected members represent the State. In the Indian Constitution, we did not opt for equal representation of States in the Council of States. This could have led to an impression that G Rajya Sabha Members of Parliament do not represent the State, as each State would have different ratio in the number of members representing it. It appears that in order to dispel such an impression it has been provided that, notwithstanding the fact that they are elected as per allocation made in the Forth Schedule, on the basis of population, members of the Council of States are indeed representatives of the State. H

KULDIPNAYAR v. U.0.1. [SABHARWAL,CJ.] 87 > • The reliance on the word "each" is misplaced. It fails to notice as to why the word "each" was inserted in the Article in the first place. Sub- Articles (4) and (5) of Article 80, in its original form, read as under: -

"( 4) The representatives of each State specified in Part A or Part B of the First Schedule in the Council of State shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. ~

.. (5) The representatives of the State specified in Part C of the First Schedule in the Council of States shall be chosen in such manner as Parliament may by law prescribe." c By the Constitution (Seventh Amendment) Act 1956, which brought ~ about States reorganization, among others, Article 80 was amended. The Statement of Objects and Reasons of the Constitution (Seventh Amendment) Act 1951, to the extent germane here, read as follows:-" D Clause 2. - The reorganization scheme involves not only the establishment of new States and alterations in the area and boundaries of the existing States, but also the abolition of the three categories of States (Part A, Part B and Part C States) and the classification of certain areas as Union territories. Article 1 has to be suitably amended for this purpose and the First Schedule completely revised. E

Clause 3. - The amendments proposed in Article 80 are formal and consequential. The territorial changes and the formation ofnew States and Union Territories as proposed in Part II of the States Reorganization Bill, 1956, involve a complete revision of the Fourth Schedule to the F Constitution by which the seats in the Council of States are allocated to the existing States. The present allocation is made on the basis of c ' the population of each State as ascertained at the census of 1941 and the number of seats allotted to each Part A and Part B State is according to the formula, one seat per million for the first five millions and one seat for every additional two millions or part thereof exceeding G one million. It is proposed to revise the allocation of seats on the basis of the latest census figures, but according to the same formula as before."

Clause 4. - The abolition of Part C States as such and the establishment , ,I H

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A of Union territories make extensive amendment of articles 81 and 82 inevitable. The provision in Article 81 (I )(b) that "the States shall be divided, grouped or formed into territorial constituencies" will no longer be appropriate, since after reorganization each of the States will be large enough to be divided into a number of constituencies and will not permit of being grouped together with other States for this B purpose or being "formed" into a single territorial constituency. Clause (2) or Article 81 and Article 82 will require to be combined and revised in order to make suitable provision for Union territories. Instead of amending the articles piecemeal, it is proposed to revise and simplify them. Incidentally, it is proposed in clause (I )(b) of the revised Article c 81 to fix a maximum for the total number of representatives that may be assigned to the Union territories by Parliament."

By the Constitution (Seventh Amendment) Act 1951, the words "specified in Part A or Part B of the First Schedule" as used in Article 80 (4) were deleted. By the same amendment, the words "States specified in Part C D of the First Schedule" in Article 80(5), were substituted by the words "Union Territories."

The States were being reorganized. The categorization of the States as Part A, Part B or Part C States was being abolished. Some of the States earlier classified as Part C States were now being named as "Union Territories". E Since the allocation of seats in the Council of States as given in the Fourth Schedule must necessarily correspond to the States (and Union Territories) mentioned in the First Schedule, in view of the requirement of Article I (2) and Article 4, the provisions contained in Article 80 had to undergo consequential amendments. F Noticeably, the word "each" had appeared only in Article 80(4) in the context of the representatives of the States. The expression "representatives of the States" appears first in Article 80( I) and then in Article 80(2) so as to specify the number (to be elected) and the allocation of seats (to be specified in the Fourth Schedule) respectively. In neither clause the word "State" is qualified by the word "each". Since sub-Article (4) and sub-Article (5) were meant to indicate the manner of election by States of different categories, they were created as separate provisions. If the word "each" had the significance attributed during arguments by the writ petitioners, it would have occurred not only in sub-Article (4) in the context of Part A and Part B States, but also in sub-Article (5) in the context of Part C States, inasmuch as States of all

KULDIPNA YAR v. U.0.1. [SABHARWAL, CJ.] 89 categories represented different units of the Union of India. A In the above view, the employment of the word "each" preceding the word "State", in the context of representation in the Council of States, is meant only to underscore the fact that the Legislative Assembly of each State was intended to be a separate electoral college for returning a member to fill in the seat allocated to the particular State as specified in the Fourth Schedule. B Nothing more and nothing less. This is more so, in view of the fact that the expression "representatives of the States" had already occurred twice earlier in the preceding clauses of the same Article. The word "each" was not required to be used in the context of Part C States (now Union territories), in Article 80(5), as originally provided or even later amended, since the C manner of representation of such units of the Union of India was left to be prescribed by the Parliament and since each such unit was not intended at that time to be provided with its own Legislative Assembly.

In the above view, the argument that the use of the word "each" in Article 80 (4) gives to the House the character of a body representing the D States, does not appeal to us.

Person to have representative character before being elected

It is the argument of the petitioners that the word "representative" in the context of democracy requires two things; i.e. (a) capacity to represent and (b) authority to represent. They submit that only a member of a class can represent the class in a system of self-governance.

It has been argued that the words "representatives of the States" in Article 80(1)(b) and (2) and the words "representatives of each State in the Council of States" as appearing in Article 80 (4) need to be interpreted in a F manner consistent with the basic structure of the Constitution keeping in mind the concept of democracy, i.e. system of self-governance. Reliance has been placed in this context once again on Sub-Committee on Judicial Accountability v. UOI & Ors. (supra); P. V. Narasimha Rao v. State (CBI. SPF) (supra); and S.R. Bommai v. UOI (supra). G The first two cases have already been taken note of. Regarding S.R. Bommai, the following observations, at page 118, have been referred to : -

"Thus the federal principle, social pluralism and pluralist democracy which form the basic structure of our Constitution demand that the H

90 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R. ;. ' A judicial review of the Proclamation issued under Article 356(1) is not only an imperative necessity but is a stringent duty and the exercise of power under the said provision is confined strictly for the purpose and to the circumstances mentioned therein and for none else. It also requires that the material on the basis of which the power is exercised - is scrutinised circumspectly." B The argument is that the word "representative" in the context of parliamentary democracy requires both capacity to represent and authority to represent. Only a member of a class can represent the class in a system of ~

self-governance. It follows that unless a person belongs to a State he will not have the capacity to represent the people of the State or the State. A person " c belongs to a State either by birth and residence or by domicile or ordinary residence in the State.

The concept of "State" implies not only territory but also the people inhabiting the territory. Article I says that India shall be a Union of States. D Therefore, it is the submission of the petitioners, the expression "representatives of each State" in Article 80 (4) refers to persons who represent the people of each State and only a person who belongs to the State or who is one among the people of the State will have the capacity to represent the State and not a person belonging to another State.

E It is further argued by the petitioners that the very fact that Article 80(4) provides for election by the elected members of the Legislative Assembly of the State coupled with the fact that in terms of Article 170, members of the Legislative Assembly shall be those chosen by direct election from territorial constituencies in the State and the further requirement that each one of them is required to. be an elector for any Assembly constituency in the State in terms of Section 5 (c) of the RP Act, 195 l shows that Members of the Council of States representing a State shall have the qualifications prescribed for \ Members of the Legislative Assembly. Both are representatives of the people; -c:: while Members of Legislative Assemblies (MLAs) are directly elected, members of the Council of States are indirectly elected by the people of the State G through their MLAs.

Section 5(c) of the RP Act, 1951 requires a person to be an elector for an Assembly constituency in the State to be eligible to contest for a seat in the Legislative Assembly. It is the argument of the petitioners that the capacity to represent arises from being a registered voter for any Assembly constituency H in the State. Therefore, to be able to represent a State, it is necessary that the •

KULDIPNAYAR v. U.0.1. [SABHARWAL,C.J.] 91 person concerned shall be a registered voter in the State. A Section 19 of the RP Act, 1950 lays down the requirement of being "ordinarily resident in a constituency" for being entitled to be registered in the electoral roll for that constituency. Section 20 gives the meaning of "ordinarily resident". B It has been argued by Mr. Nariman that an elected member to the Council of States does not "represent" the State only because he is elected .L. by the State Assembly. In order TO represent the State (as distinct from representing the State Assembly) in the Council of States, he must first be the representative of the State under Article 80(4) before the legislative body C elects him. He buttressed this plea by seeking to highlight that in the said sub-Article, the expression "representatives of each State in the Council of States" precedes the prescription about mode of election (the system of proportional representation by means of the single transferable vote).

The Counsel further argued that the expression "representatives of the D States", as used in Article 80 ( 1) (b) and Article 80 (2) and the expression "representatives of each State", as employed in Article 80(4) have been left to be defined by Parliament "by law" made under Article 84 (c) which requires Parliament to prescribe as to what "such other qualifications" a person must possess in order to qualify to be chosen as a member of parliament, that is qualifications other than those given in Article 84(a) and (b) that relate to citizenship of India, oath or affinnation inter alia of faithfulness and allegiance to the Constitution and the prescription about minimum age.

It has been contended that Article 80(4), by using the expression "representatives of each State" emphasizes that person who is elected must first be qualified as a representative of the State in question. If the qualification was meant to originate from his being merely elected by any particular State Assembly, the clause would have read:-

"The elected members of the Legislative Assembly of each State shall elect their representative in the Council of States in accordance with the system. of proportional representation by means of a single transferable vote."

The Counsel has submitted that unlike Article 81, which does not stipulate that a person elected to the House of the People shall be from a territorial constituency in a particular State so as to be the representative of H

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A such State in the House of the People, Article 80 does require the pe'rson in question to first be a representative of the State before he is elected by the elected members of the Legislative Assembly of that State. The mere fact of election by particular State Assembly of any "elector" in India cannot render that person as being "qualified" to represent that State.

B Mr. Nariman referred to the term "elector" which has been defined in Section 2(e) of the RP Act 1951, in relation to constituency, as a person whose name was entered in the electoral rolls of the constituency for the time being in force. He also pointed out that under Section 19 of the RP Act 1950, every ,. person who is not less than 18 years of age on the qualifying date and is C "ordinarily resident" in a constituency only is entitled to be registered in the electoral roll of that constituency.

He submitted that provisions of RP Act, 1950 and 1951 were in the nature of "further qualifications for membership", as clarified through Notes on Clauses on what was enacted as Section 3 of the RP Act, 1951, as published in the Gazette of India, December 23, 1950-Part II-Sec.2, which reads as follows:-

"Clauses 3 to 6 - Articles 84 and 173 of the Constitution have laid down certain qualifications for membership of Parliament and of the State Legislatures and have left it to Par! iament to prescribe such further qualifications as it may consider necessary. Clauses 3 to 6 seek to prescribe these jiirther qualifications for membership.

(Emphasis supplied)

Section 4 of the RP Act, 1951 prescribes the qualifications for membership of the House of the People. The said provision generally requires a person seeking to fill a seat in the House of the People to be "an elector for any Parliamentary constituency". There was thus a material difference between • the qualification of domicile within the particular State as prescribed for the Council of States and the qualification of domicile within any Parliamentary G constituency in India as prescribed for the House of the People. This was subject matter of debate in the provisional Parliament on 1l th May 1951, at the time of consideration of the Bill, which would later take the shape of RP Act, 1951. Mr. Nariman referred to the debate in Parliament on Section 3 of the RP Act 1951.

H It appears that in the course of the said debate it came to be pointed

KULDIPNAYAR v. U.0.1.[SABHARWAL,C.I.] 93 out as incongruous as to why a candidate to the Council of States should A be a resident of the State concerned while a candidate to the House of the People need only be a resident in any Parliamentary constituency in the country. The record of Parliamentary debates would show that Dr. Ambedkar had explained the distinction referring to the requirement of residence within the State concerned on account of the House in question being the Council of States and the absence of such requirement of residence within the State B concerned for the other House because it was the House of the People.

It is the submission of the learned counsel that the Parliamentary debates on the justification for distinction is clearly indicative of the reason why the representative character of the member elected to the Council of States was defined, it being that the election was to the Council of State> and not to the House of the People; that is to say that a person residing or working in Area "A", therefore, could not represent Area "B", or for that matter any other place.

It is the contention of the Counsel that the impugned amendment sets at naught the representative character of the person elected, as grafted in the provision amended in the form of his connection with the State he represents in the Council of States, leaving it undefined either with reference to "residence" (in the past or in the present), or to place of birth, or to performance of public duties in the State whose Assembly elects him to the Council of States. E Before proceeding further, we would like to refer to certain observations of a Constitution bench of this Court in G. Narayanaswami v. G. Pannerselvam & Ors., [1972] 3 SCC 717, appearing in Paragraph 4 which read as under: -

"Authorities are certainly not wanting which indicate that courts should interpret in a broad and generous spirit the document which F contains the fundamental law of the land or the basic principles of its Government. Nevertheless, the rule of "plain meaning" or '~literal" interpretation, described in Maxwell's Interpretation of Statutes as "the primary rule", could not be altogether abandoned today in interpreting any document. Indeed, we find Lord Evershed, M.R., G saying: "The length and detail of modern legislation, has undoubtedly reinforced the claim of literal construction as the only safe rule". (See: Maxwell on Interpretation ofStatutes, 12th Edn., p. 28.) It may be that the great mass of modern legislation, a large part of which consists of statutory rules, makes some departure from the literal rule of interpretation more easily justifiable today than it was in the past. But, H

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A the object of interpretation and of "construction" (which may be broader than "interpretation") is to discover the intention of the law- makers in every case (See: Crawford on Statutory Construction, 1940 Edn., paragraph 157, pp. 240-42). This object can, obviously, be best achieved by first looking at the language used in the relevant provisions. Other methods of extracting the meaning can be resorted B to only if the language used is contradictory, ambiguous, or leads really to absurd results. This is an elementary and basic rule of interpretation as well as of construction processes which, from the point of view of principles applied, coalesce and converge towards the common purpose of both which is to get at the real sense and c meaning, so far as it may be reasonably possible to do this, of what is found laid down. The provisions whose meaning is under consideration have, therefore to be examinei:I before applying any method of construction at al I... ... "

We endorse and reiterate the view taken in the above quoted paragraph of the Judgment. It may be desirable to give a broad and generous construction to the Constitutional provisions, but while doing so the rule of "plain meaning" or "literal" interpretation, which remains "the primary rule", has also to be kept in mind. In fact the rule of "literal construction" is the safe rule unless the language used is contradictory, ambiguous, or leads really to absurd results.

Regarding the words in Article 80(4) of the Constitution, viz., "the representatives of each State", as already stated, we are not impressed with the submission that it is inherent in the expression "representative", that the person, in order to be a representative, must first necessarily be an elector in the State. If this concept were to be stretched further, it might also require birth in the particular State, or owning or having rented property or belonging to the majority caste, etc. of that State. Needless to mention, no such • qualification can be added to say that only. an elector of that State can represent that State. The "representative" of the State is the person chosen by the electors who can be any person who, in the opinion of the electors, is fit to represent them. There is absolutely no basis for the contention that a person who is an elector in the State concerned is more "representative" in character than one who is not.

We do not find any contradiction, ambiguity, or absurdity in the provisions of the law as a result of the impugned amendment. Even while *

KULDIPNAYAR v. U.0.1. [SABHARWAL,C.f.] 95 construing the provisions of the Constitution and the RP Acts in the broadest or most generous manner, the rule of "plain meaning" or "literal" interpretation compels us not to accept the contentions of the petitioners.

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

Article 84 applies to the Council of States as much as it does to the House of the people. This Article begins with the words: - D "A person shall not be qualified to be chosen to fill a seat in Parliament unless."

Thus, every member of Parliament, be one "nominated by the President" under Article 80 (1) (a), or "a representative of the State" elected under Article E 80(1)(b) read with Article 80(4) and (5), or a "member" of the House of the People elected under Article 81, fills a seat in Parliament.

A Constitution Bench of this Court in Shri V. V. Giri v. Dippala Suri Dora & Ors., [1960] 1 SCR 426: AIR 1959 SC 1318 had while construing the expressions "seat' and "to fill a seat" as used singly or together in Articles F 81(2)(b), 84, 101(2), and 330 held as under: -

" ...... some articles of the Constitution and some sections of the Act refer to seats in connection with election to the House of the People. For instance, when Article 81 (2)(b) provides for the same ratio throughout the State between the population of each constituency G and the number of seats allotted to it, it does refer to seats, but in the context the use of the word "seats" was inevitable. Similarly Article 84 which lays down the qualification for_ the members of parliament begins by saying that a person shall not be qualified to be chosen "to fill a seat" in Pariiament unless he satisfies the tests prescribed H

'. 96 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R. .. A by its clauses (a), (b) and (c). Here.again the expression "to till a seat" had to be used in the context. The same comment can be made about the use of the word "seat" in Articles 101(2) and in 330. There is no doubt that when a candidate is duly elected from any constituency ~~&~ef~h~~~a~~~&~mw~~ representative of the said constituency; and so the expression "tilling the seat" is naturally used whenever the context so requires."

(emphasis supplied)

On the same analogy, it must be said that when a candidate is elected by the electorate comprising of the members of the Legislative Assembly of the State to represent the State in the Council of States, he is elected and chosen as "a representative of the State". The words "representative of the State" do not in any manner connote that the representative must also be an elector or a voter registered in the State itself.

D It is the status acquired upon election as a member of the legislature that bestows upon the person the character of a "representative". This has been the view taken by this Court earlier also. In B.R. Kapur v. State of T.N. & Anr., [200 I] 7 SCC 231, a Constitution Bench of this Court was considering the questions relating to entitlement of a person, not a member of the legislature, to be appointed as a Chief Minister. On the basis of construction of various E provisions of the Constitution, in particular Articles 163(1), 164(1) (2)and (4), 173, 177 and 191, this Court held at page 289: -

"There is necessarily implicit in these provisions the requirement that a Minister must be a member of the Legislative Assembly and thus representative o.f and accountable to the people of the State." F An elector has to be an ordinary resident of the Constituency in which he is registered as such in view of the statutory requirements of Sections 19 and 20 of the RP Act, 1950. There is no requirement in law that the person elected must possess the same qualifications as the elector possesses. This is further clear from the scheme of the Constitution as is evident from Article G 171 (3) of the Constitution that provides for the composition of the Legislative Council, which is a House at the level of the States, akin to the Council of States at the level of the Union.

Members of the municipalities and boards, graduates, teachers are t H required under Article 171 to elect a certain percentage of members of the

KULDIPNAYAR v. U.O.I. [SABHARWAL,CJ.) 97 .. Legislative Council. It is not necessary that the person elected must either be A a member of the municipal board or a graduate or himself a teacher. The electorate can elect whoever in their wisdom is considered most suited to be a representative of theirs.

In G. Narayanaswami's case (supra), a Constitution Bench of this Court was considering the provisions contained in Articles 171 and 173 and Sections B 5 and 6 of the RP Act, 1951. The following observations made in Paragraph • 7 of the Judgment are of relevance here: -

"The plain and ordinary meaning of the term "electorate" is confined to the body of persons who elect. It does not contain, within its ambit, the extended notion of a body of persons electing representatives c "from amongst themselves". Thus, the use of the term "electorate", in Article 17 \ (3) of our Constitution, could not, by itself, impose a limit upon the field of choice of members of the electorate by requiring that the person to be chosen must also be a member of the electorate."

Undoubtedly, Section 6 of the RP Act, 1951 continues to require domicile within the State as a necessary qualification for a person seeking to be elected as a member of Legislative Assembly or the Legislative Council of the State. ' But, in view of the above law laid down by this Court, from which we do not find any good reason to make a departure in the case at hand, there is no merit in the plea that the "representative of the State" elected by the legislative assembly of the State must also be an ordinary resident of the State just because the electorate that is electing him are required by Jaw to be so.

The question of "ordinarily resident" is relevant for preparation of electoral rolls and nothing further. This is evident from bare reading of the scheme of provisions contained in RP Act, 1950, in particular Sections l3D, 1 F J 4, 15, 17, 18, 19 and 20. Electoral rolls for ·purposes of elections governed by the RP Acts are prepared assembly-constituency wise under Section 15. Section l 3D relates to the Electoral rolls for Parliamentary constituencies and renders the electoral rolls for all assembly constituencies comprised within the parliamentary constituency put together as the electoral roll for such G . parliamentary constituency. Electoral rolls are prepared basically for assembly constituencies and revised year-wise. A conjoint reading of Sections 17, 18, 19 and 20 shows that a person can get himself registered as voter once in only one assembly constituency which must be the one within which he is an ordinary resident. H

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

A In Pampakavi Rayappa Belagali v. B.D. Jatti & Ors., [1971] 2 SCR 611, • the election of the first respondent to the Mysore Legislative Assembly had been challenged, amongst others, on the ground that he had ceased to be a person "ordinarily resident" within the Jamkhandi constituency and thus questioning the validity of entry of his name on the electoral roll for that constituency. The High Court had rejected the election petition including on the aforesaid ground. This Court while dismissing the appeal against the judgment of the High Court observed, inter alia, that the conditions of registration as an elector in the electoral roll, as provided in Section 19 of the RP Act, 1950 includes the condition that the person must be "ordinarily resident" in the constituency and that the meaning of the expression "ordinarily resident" is given in Section 20 and further that "the conditions about being ordinarily resident in a constituency for the purpose of registration are meant for that purpose alone ....."

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

The expression "representative of each State" in Article 80(4) of the Constitution is not a qualification and cannot be read as a condition precedent for being elected. The Constitution has dealt with "qualifications" exclusively in Article 84 of the Constitution, as would also be clear from the marginal note besides the contents of the provision itself.

We agree with the submission that by definition, the word F "representative" simply means a person chosen by the people or by the elected Members of the Legislative Assembly to represent their several interests in one of the Houses of Parliament. A person becomes a representative

G only after he is chosen in the prescribed manner. He is not a representative earlier. At best, he .can claim to be called a candidate or a potential representative. The theory that before he becomes a representative he should have some nexus other than one prescribed by the law in force is not - palatable and not supported by any !aw or view taken in any case. ... Panchayati Raj Amendment territorial link

Mr. Nariman has submitted that there is a constitutional recognition of H the concept of territorial link of the members of the Council of States (as

KULDIPNA YAR v. U.0.1. (SABHARWAL. CJ.] 99 -~

representing the particular State in the Council of States). A He buttressed this contention by referring to the 73rd and 74th r Constitutional Amendment Acts 1992 which introduced Part IX and Part IX- A to provide that there shall be constituted in every State, Panchayats (at village, intermediary and district levels) and Municipalities as institutions of self government (Article 2438 and Article 243Q). Article 243C (Composition B of Panchayats), through clauses (c) and (d) of sub-Article (3), authorizes the Legislature of a State, by law, to provide for the representation "of the members ' of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly a Panchayat area at a level other than the village level in such Panchayat" and "of the members of the Council of Stares and the members of the Legislative c Council of State, where they are registered as electors within" a Panchayat area at the intermediate or district level, as the case may be.

Similarly, under Article 243R (Composition of Municipalities), through sub-Article (2), the Legislature of a State has been vested with the power to, D by law, provide for the representation in a municipality of "the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the municipal area" and "the members of the Council of States and the members of the Legislative Council of the State registered as the electors within the municipal area". E

According to Mr. Nariman, the constitutional recognition given to the territorial link between. the member of the Council of States (as representing the particular State in the Council of States) and his position as a registered elector in any Pa/'IChayat or Municipal area in that State for purposes of local F bodies reinforced the plea that the insistence on local residence within the

- " particular State for representatives of the States in the Council of States was part of the Constitutional scheme.

The argument is found, on close scrutiny, to be devoid of merit for several reasons. G First and foremost, the provisions mentioned above are not exceptional in relation to a member of the Council of States on account of his position as a registered elector in any Panchayat or Municipal area in that State for purposes of local bodies. They equally apply to the members of the House . .J of the People and the Legislative Assemblies (as indeed, the Legislative H

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

A Councils) of the State concerned.

Secondly, the above provisions are part of the scheme of local self- government engrafted in the Constitution, the object sought to be achieved thereby being to provide a 1inkage between the local bodies and the legislature at the State and Union levels. The purpose sought to be achieved is to give B to the Members of State Legislature and the Parliament access to the grass- root level, equipping them with knowledge about local problems, issues, opinions and aspirations, thereby strengthr.ning democracy.

Then, the enabling provisions may not have uniform application. Their C effect would depend on the provisions enacted or to be enacted by the respective State Legislatures for each State. The enabling provisions, the import of which is reflected in phraseology extracted above, themselves make it abundantly clear that the claim of the members of the Stare or Union Legislature for representation in the Panchayat or municipality depends on various factors that may or may not exist vis-acvis each such member. To D elaborate, it can be said that if there can be a member of the Council of States registered as an elector within a Panchayat area or municipal area there can also be a member of the Council of States not so registered as an elector within a Panchayat area or municipal area. Moreover, the relevant clauses do not apply only to elected members of the Council of States. Thus, even a nominated member of the Council of States qualifies to be a representative in the Panchayat or a municipality if he fulfills the qualification prescribed. So, a conclusion in respect of the elected "representatives of the State" in the Council of States cannot be reached on such ba>is.

Further, these provisions generally provide for the qualifications of various categories of persons, which happen to include the members of the Council of States, to be representatives in a Panchayat or municipality, and share in local self governance. Since the members of the Council of States were one of the several sources being tapped for the purpose of providing for . representation of different interest groups in the deliberative wing at the local level, it was incumbent to lay down some method of selection. G Last, but not tne least, the provisions that have been referred are Constitutional provisions. Even on the premise that in enacting them the factor of registration as elector within n particular Panchayat or municipal area was considered important in relation to the members of the Council of States so as to give them the additional responsibility of representation in the H local Panchayat or municipality, it cannot be said that these provisions add

. KULDIP NAY AR v. U.0.l. [SABHAR WAL CJ] 101

the requirement of domicile to the qualifications for membership in the Council A of States. There is no such express Constitutional provision prescribing such additional qualification.

Thus, the argument based on the 73rd and 74th Constitutional Amendment Acts 1992 which introduced Part IX and Part IX-A to provide for Panchayats and Municipalities as institutions of self government is of no B avail to the petitioners.

Concept of Residence to change with passage of time

It is the argument of the Writ Petitioners that there must be a rational nexus between the State and its representatives in the Council of States. Such C nexus, as per the submissions, could be found only in the requirement of residence in the State for a minimum specified period. To be able to "represent" the State, it has been urged, one has to be fully conversant with the language, current problems, needs, aspirations and interests of the people of the State and the concerns of the State Government. It is not difficult to visualize a D conflict between duty and interest in the case of members belonging to one .. State being elected from another State on issues upon which the two States are at loggerheads.

The contention of the pet1t1oners is that the provision contained in Section 3 of the RP Act, 1951, prior to the impugned amendment, provided E for a reasonable nexus between a member of the Council of States and the State from which he is elected, viz. the nexus on account of domicile. It has been argued that the amendment doing away with the said provision i.e. requirement of residence in the State, has the effect of snapping the rational nexus necessary to fulfill the object of representation in the Council of States having regard to the federal character of the Indian Union. F . Mr. Nariman, in the course of his arguments, has referred to the arrangement in Section 3 of the RP Act 1951, as originally enacted, as the constitutional scheme. On this premise, he would argue that Parliament could make a departure from this scheme only by providing some other criteria or G link for determining the representative capacity of a prospective member of the Council of States. He illustrated this by submitting that the test of "ordinary residence", as inherent in Section 3 of the 1951 Act before its amendment, could be modified by Parliament only so as to provide some other characteristic of effective representation, viz. (i) born in the State, (ii) having property in the State, (iii) philanthropic or charitable works done in the State, (iv) education H

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

A in the State, (v) having worked for some period of time in the State, or some such other criteria.

It was also submitted by some petitioners that the impugned amendment in Section 3 of the RP Act, 1951 has opened the floodgates of corrupt practices in the matter of allotting seats to the candidates of choice of powers that be B in the political parties and their election is ensured by maneuvers or manipulations.

The above argument is based upon the intrinsic concept of the word .. 'representative'. This word 'representative' has no definite meaning. Like C 'residence', 'representative' is a malleable concept. In some federal countries, the Upper House has been designed to reflect the views or interests of the constituent States and to provide a means to protect the States against improper federal laws. In the United States, the Senate is composed on federal principles. Each State, irrespective of its size or population, sends two Senators and, thus, has an equality of representation in the House. On the other hand, the D House of Representatives is constituted on population basis. In US the Senators are elected by the population vote. The Senate is a continuing body and one- third of its members retire every two years.

In Canada, the Senate is composed on a different principle. Each province is assigned a fixed number of Senators, though unequal. The E allegiance of the Senators in Canada is usually to the party which appoints them.

Rajya Sabha resembles the American Senate insofar as it is a continuing body. Rajya Sabha, however, differs from the US Senate insofar as its members are not elected directly by the States and there is no equality of representation of the States. Rajya Sabha resembles the Australian Senate insofar as both are based on the principle of rotation. • The point which we would like to emphasize here is that even in countries where strict federalism exists, with the passage of time, the original role of the Senate of guarding interests of the States as political units has largely disappeared. With globalization, the US Senate now functions as a national institution rather than as a champion of local interests. This tran~formation has taken place in US due to several factors such as direct election of Senators by the people of a State, development of strong political parties advocating national programmes and development of national integration, etc. -

KULDIPNAYAR v. U.0.1. (SABHARWAL, CJ.] 103 Similarly, in India, after 1990, due to relaxation of central economic control, the conceptual and theoretical framework offederalism has undergone a sea-change. The concepts of the words 'residence' and 'representative' are not fixed concepts, therefore, they have to change with time. The constitutional framers have kept that flexibility in mind, they have left it to the Parliament to decide the qualification for membership of the Parliament and, while deciding the qualification, the Parliament has to take into account the contextual scenario. There cannot be one uniform, consistent and internal definition or connotation of these concepts. These concepts undergo changes with the passage of time. They cannot be decided etymologically by reference to dictionaries.

Sub-Section (I) of Section 20 of the RP Act, 1950 clarifies that mere c ownership or possession of a dwelling house at a certain place does not necessarily mean that a person is ordinarily residing there. Sub-Section (2) declares that incarceration as a prisoner in jail or confinement as a patient of mental illness at a certain place does not make that place the ordinary residence of the individual. D On the other hand, some of the sub-Sections collectively indicate that , .. temporary absence on account of certain specified exigencies cannot disrupt the ordinary resident status of an individual.

Sub-Section (IA) provides that temporary absence of a person from a E particular place does not result in cessation of his ordinary residence there.

Sub-Sections (18)(3) and (4) protect the ordinary resident character of an individual vis-a-vis the place where he would be ordinarily residing but for official engagements. Sub-Section (IB) takes care of legislators' absence from their respective constituencies in connection with responsibilities of the F office they hold. Sub-Sections (3) and (4) pertain to compulsions of the • service (in Armed forces or police or foreign posting in service under ,.. Government of India) to be at a place other than the one where one ordinarily resides. G Sub-Sections (5) and (6) of Section 20 of RP Act, I 950 render the declaration, in prescribed form, of a person about the place of his (and that of his spouse) ordinary residence as sufficient proof, though subject to determination, should a question be raised in such regard, under rules to be framed under sub-Section (7). ·~ H

104 SUPREME COURT REPORTS (20061 SUPP. 5 S.C.R.

A Lexicon refers to Ciculli v. Suffolk Country Council, (1980] 3 All. ER 689]. to denote that the word "ordinarily" is primarily directed not to duration but to purpose. In this sense the question is not so much where the person is to be found "ordinarily", in the sense of usually or habitually and with some degree of continuity, but whether the quality of residence is "ordinary" B and general, rather than merely for some special or limited purpose. ' The words "ordinarily'' and ''resident" have been used together in other statutory provisions as well and as per the Law Lexicon they have been construed as not to require that the person should be one who is always resident or carries on business in the particular place. c The expression coined by joining the two words has to be interpreted with reference to the point of time requisite for the purposes of the provision, in the case of Section 20 of RP Act, 1950 it being the date on which a person seeks to be registered as an elector in a particular constituency.

D Thus, residence is a concept that may also be transitory. Even when qualified by the word "ordinarily" the word "resident" would not result in construction having the effect of a requirement of the person using a particular place for dwelling always or on permanent uninterrupted basis. Thus understood, even the requirement of a person being "ordinarily resident" at ,. a particular place is incapable of ensuring nexus between him and the place E in question.

The nexus between the candidate and the State from which he gets elected to fill a seat in the Council of States is provided by the perception and vote of the elected Members of the Legislative Assembly who consider him (necessarily an Indian Citizen) as best qualified to further the interests of the F State in Parliament.

When voting for a candidate in an election, perception of his skills as a legislator, his knowledge of State affairs, his services to the constituency he seeks to represent and the satisfaction or confidence in having him as the representative of the electorate are enough considerations or qualifications. These considerations undoubtedly are certainly of more weight than transitory or often illusory concept of "residence".

This Court would refrain from passing comment on the argument of the Union of India that it is a matter of common knowledge that, before the impugned amendment was brought about, in the anxiety to secure good ...

KULDIPNAYAR v. U.O.l. [SABHARWAL, CJ.] 105

:....... candidates, the requirement of residence was being bypassed usually by illegitimate subterfuges like being compelled to make false declarations about their real residence. or further that the experience had shown that the qualification of domicile was proving to be an obstacle in getting the right members into the Council.

Suffice it to say here that our electoral system needs to be rendered free from all known vices and so there is no reason why Parliament should be denied the opportunity to bring in such legislation as is deemed by it, in its wisdom, as would plug the possible holes of abuse, for which Parliament has --'. the necessary legislative .competence. :=- Article 80(4) is not being correctly read by the petitioners when they c make the submissions that have been noticed above. The suggestion that the expression 'representative of each State' implies a condition of residence or other link with the States to be represented ignores the importance of the expression "in" preceding the expression "the Council of States".

Article 80(4) does not say that representative of each State to be elected D must first be a representative of the State before election. To read this requirement into Article 80(4) would do violence to the words and would be grammatically incorrect.

A grammatical clause analysis of Article 80(4) shows that it is nothing more and nothing less than what is reflected if it were to be worded thus: - E

"The elected members of the Legislative Assembly of the State shall elect the representatives of each State in the Council of States in accordance with the system of proportional representation by means of a single transferable vote". F In the provision contained in Article 80(4), thus put in the active voice, the emphasis is on 'who elects'. In the existing passive form, the emphasis

.. 4 is on how the representatives would be elected. The result, either way, is the same. Article 80(4) deals with the manner of election and nothing more .

Therefore, the words "representative of each State" only refers to the G members and do not import any further concept or requirement of residence in the State.

Absence of Justification Objects and Reasons

Another submission urged is that the Statement of Objects and Reasons ~ H _)

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

A for the Bill which brought about the amendment itself shows the absence of ..... ~ justification for doing away with the will of the Parliament as earlier reflected in original Section 3 of the RP Act 1951, which was in consonance with the scheme of the Constitution. The Statement of Objects and Reasons for the Bill mentioned that "a precise definition for 'ordinarily resident' was very difficult" and that after the matter was "examined in depth by the Government" B it had been decided to do away with the requirement of residence in a particular State or Union Territory for contestillg election to the Council of States from that State or Union Territory, and further that there were numerous instances where persons who were not normally residing in the State had got themselves registered as voters in such State simply to contest the elections to the Council ,.. c of States. ""=

The petitioners point out that the definition of "ordinarily resident" contained in Sections 19 and 20 of Representation of the People Act, 1950 remain unamended. As per their submissions, if persons actually not residing in a particular State have wrongly got themselves registered as voters in such D State or there was difficulty in applying the words 'ordinarily resident', the statute afforded the remedy in Section 20(7) of Representation of the People Act, 1950, giving authority to the Central Government to frame rules, in consultation with the Election Commission, to determine the questions arising. Besides, it has been argued, the decision of the Election Officer in above regard, under the existing law, is rendered final and cannot be raised again in an Election Petition, as held by a Constitution Bench in Hari Prasad Mulshanker Trivedi v. V.B. Raju & Ors., [1974] 3 SCC 415. '

It has been argued that the reasons given in the Statement of Objects and Reasons for the Amendment Act do not provide any rational justification for the impugned amendment. The problem that some persons, though not ordinarily resident in the State, yet manage to get themselves registered as voters in a Parliamentary Constituency of the State and get elected to the Council of States, needs to be tackled by making more effective the provision so as to prevent such registration, if any, and for cancellation of such registration and deletion of their names from the voters list. This problem, .• G according to the petitioners, requires a different treatment but not by striking at the root of meaningful and effective representation of the States in the Council of States by amending Section 3. The petitioners' contention, thus, is that the amended Section 3 is irrational, arbitrary and unconstitutional.

The petitioners further argue that the reasons given in affidavit in reply, H re=: '-

KULDIP NAY AR v. U.O.l. [SABHARW AL CJ.] 107

by Union of India, to justify the impugned amendment for amending Section A 3 are different from the reasons given in the Statement of Objects and Reasons for the Bill.

The Counter Affidavit of the Union of India states that the members of Legislative Assemblies are in the best position to decide who would best represent their States' interest in the Rajya Sabha. The petitioners submit that this is a doubtful proposition having regard to what the Ethics Committee of the Council of States said in its report about large sums of money being the motivating factor in electing members of the Council of States.

The petitioners also lament that the well considered view expressed by an eminent body like the National Commission on Working of the Constitution has been unreasonably brushed aside. The Commission in Paragraph 5.11.5 of its report did express its view that the Parliamentary legislation that had been initiated seeking to do away with the domiciliary qualification for being chosen as a representative of any State or Union territory in the Council of States would affect "the basic federal character of the Council of States" and that in order to maintain the said basic federal character of the said House, "the domiciliary requirement for eligibility to contest elections to Rajya Sabha from the concerned State is essential". Union of India has stated that it respectfully differs from the views expressed by the Commission.

We need not go into the question whether the views of the National E Commission on Working of the Constitution were supported or not by elaborate examination of the issue in all of its dimensions, since the said views are not binding on the Government. The role of the Commission was more in the nature of being advisory. We are not impressed with the other submissions, having already rejected the plea based on the federal character of polity. The F views of the Commission were founded on that premise.

In Hari Prasad Mulshanker Trivedi v. VB. Raju (supra), relied upon by the petitioners, this Court was concerned with the question whether the election of respondent numbers 4 and 5 as members of the Council of States from the State of Gujarat which was challenged by way of an election petition, was G void on the ground that they were not ordinarily resident in the area covered by any parliamentary constituency in the State of Gujarat and that their names had been illegally entered in the electoral rolls of the respective constituencies in Gujarat and as they were not 'electors' within the meaning of Section 2( I)(e) of RP Act, 1951, they were not eligible to become candidates H

108 SUPREME COL'RT REPORTS (2006) SUPP. 5 S.C.R.

A in the election. While .dealing with the contention about jurisdiction of the Court to decide whether the entries in the electoral roll regarding the respondents were valid or not, !his Court observed: -

B "The requirement of ordinary residence as a condition for registration in the electoral rolls is one created by Parliament by Section 19 of the 1950 Act, and as we said, we see no reason why Parliament should have no power to entrust to an authority other than a court or a tribunal trying an election petition the exclusive power to decide the matter finally. We have already referred to the observation of this c Court in Kabul Singh case that Sections 14 to 24 of the 1950 Act are integrated provisions which form a complete code in the matter of preparation and maintenance of electoral rolls. Section 30 of that Act makes it clear that civil courts have no power to adjudicate the question. In these circumstances we do not think that it would be D incongruous to infer an implied ouster of the jurisdiction of the Court trying an election petition to go into the question. That inference is strengthened by the fact that under Section lOO(l)(d)(iv) of the 1951 Act the result of the election must have been materially affected by ,. non-compliance with the provisions of the Constitution or of that Act or of the rules, orders made under that Act in order that High Court E may declare an election to be void. Non-compliance with the provisions of Section 19 of the 1950 Act cannot furnish a ground for declaring an election void under that clause."

While disposing off the appeal, the Court concluded thus: F "We think that the intention of the Parliament to oust the jurisdiction of the Court trying an election petition to go into the question whether a person is ordinarily resident in the constituency in the electoral roll of which his name is entered is manifest from the scheme of 1950 and the 1951 Acts. It would defeat the object of the 1950 Act if the G question whether a person was ordinarily resident in a constituency were to be tried afresh in a court or tribunal, trying an election petition."

The above observations do not advance the case of the petitioners in any manner. There may be a separate machinery available under the RP Act, H 1950 to question and inquire into the correctness of the entry of the name of

KULDIPNAYAR v. U.0.1. (SABHARWAL,C.I.] 109 an individual in the electoral roll of a particular constituency, a remedy A distinct from that of an election petition to challenge the election of the candidate declared to have been returned in an election. but this fact cannot ~

lead to the conclusion, by any stretch of reasoning. that the removal of the domiciliary requirement from the qualifications for membership of Parliament is opposed to law or common sense. B Union of India would refer to the Registration of Electoral Rules, 1960 as the rules framed under Section 20 of the RP Act, 1950. The said rules, generally speaking, provide for the form and languages of the electoral rolls; preparation thereof in parts; order of names; forms in which declaration about the claim and fulfillment of qualification is required to be made; information to be supplied by occupants of dwelling houses; access to the registers; publication of draft electoral rolls and publicity to be given thereto; lodging of claims and objection with manner and forms prescribed in that regard; procedure for process, re.1ection or acceptance of claims and objections after or without inquiry; inclusion or deletion of names; final publication of electoral rolls; appeals or revisions against the orders passed; identity cards etc. We have not been able to find any specific provision in these rules as could be held to be a guide to the concerned authorities for determining in a particular fact situation if an individual is, or is not, "ordinarily resident" of a particular place at a particular point of time.

We must hasten to add that we are not saying that it is not possible to give a precise definition of the expression "ordinarily resident" for purposes mentioned in the electoral law. We would also not make an attempt to give such definition in these proceedings since that would be a matter within the domain of the Legislature. What we want to emphasize is only the fact that the Central Government faced difficulty in giving a precise definition of the expression and candidly admitted the difficulty while introducing the amendment.

In this context, what could be open to the Court is to examine whether the difficulty in giving precise definition was not a bona fide reason in view of the meaning of the expression given in Section 20 of the RP Act, l <150 or in the face of the dictionary meaning by which the said expression can be generally understood. We have already found that the provision in question leaves much to be desired and the guidance provided by law is deficient in that it does not give a clear cut definition as to how the question of ordinary residence of an individual is to be determined. H

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A Article 84 of the Constitution provides for qualifications for membership of Parliament. The requirements in Article 84 for a person to fill up a seat in either House of Parliament, including the Council of States, are: -

(i) The person elected should be a citizen of India; (ii) He must subscribe an oath of affirmation as per the form set out in the Third Schedule; (iii) In the case of Council of States he must be not less than 30 years of age; (iv) He must possess such other qualifications as may be prescribed in this behalf by or under any law made by Parliament.

The disqualifications for being chosen as, or for being, a member of either House of Parliament are contained in Article I02. A person incurs disqualification if he:-

(i) holds any office of profit; D (ii) is of unsound mind and stands so declared by a competent court; (iii) is an un-discharged ir.solvent; (iv) is not a citizen of India or has voluntarily acquired a citizenship of a foreign State etc; E (v) is so disqualified under any law made by the Parliament.

The Constitution, thus, has no requirement that a person chosen to represent a State in the Council of States must necessarily be a voter in that State itself. The Constitution, after prescribing certain qualifications and disqualifications, has left it to the Parliament to provide other such qualifications or disqualifications. The Parliament had initially prescribed an additional qualification that a person so chosen should be an elector for a Parliamentary constituency in the State. After working out this provision for more than five decades, the Parliament in its legislative wisdom, decided through the impugned amendment that a person chosen to be a representative of a State in the Council of States need not necessarily be an elector within the particular State or, in other words he must be an elector in any parliamentary constituency in India, but not necessarily in the concerned State.

Union of India has submitted that the Parliamentary Debates and the H

KULDIP NAY AR v. U.0.1. [SABHARWAL, CJ.] 111

Report of the Standing Committee indicate that the experience of the past fifty years has been considered. According to its submissions, the considerations which weighed with the Parliament, inter alia, included the fact that the Constitution does not prescribe any mandatory requirement that the elected member should be an elector in the State from where he is elected.

Union of India would also claim that several persons whose presence could add to the quality of debates and proceedings in the Council of States had, under the dispensation before amendment, been constrained to enroll themselves as voters in another State just in order that they could be elected from such State. It has been further submitted that unless they did so, some States would remain unrepresented in the Council of Ministers due to the non-availability of such talented members of these States in the House of the People and the Council of States and, thus, the opening out of the residential provision was meant to help in this regard. The Constitution under Article 19(1)(e) guarantees the freedom to a citizen to choose a residence of his choice. There are several cases of elected representatives who may have multiple residences and may have to choose any one of them as a matter of convenience where to vote.

The cases of persons maintaining multiple residences at several places would be few and far between. Even otherwise that should not have posed any problem since the requirement of law was that of ordinary residence which would not apply to each of the several residences of a person. E We are not concerned with the political compulsions or considerations that are implied by some of the above-mentioned submissions of the Union of India and others supporting its stand. It is not necessary for us to examine the plea of the Union of India as to the competence or talent of, or the addition to the quality of debates or discussion in Parliament due to participation by, certain specific members of Parliament reference to whose names was sought to be made by the learned counsel in the course of arguments contesting the contentions of the writ petitioners.

Suffice it to say here that the submissions on both sides would show that the erstwhile arrangement in the law, that is the arrangement prior to the impugned amendment, to determine the question as to whether a particular person is ordinarily resident of a particular place or not had not worked satisfactorily. The law does not give a clear concise definition or guidance in this regard. The declaration oi the person concerned is generally taken as the H

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

A gospel truth and before the correctness of such declaration is disputed, the challenger must arm himself with cogent proof showing facts to the contrary. In this scenario, declarations that were false to the knowledge of the makers thereof seem to have been used brazenly and with impunity. We mention this trend because its existence was alleged by some counsel and not denied by anyone. This undoubtedly could not be a happy state of affairs.

Nonetheless, if the Parliament in its wisdom has chosen to do away with the domiciliary requirement as qualification for contesting an election to fill a seat as representative of a particular State in the Council of States, fault cannot be found with such decision of the Parliament on the ground that difficulty to define what was meant by the expression "ordinarily resident" was not an honest ground. This, for the simple reason that there was nothing in the Constitution or the law at any point of time rendering the domiciliary requirement as crucial qualification for purposes particularly of the Council of States.

D We must, however, <:dd here that while the impugned ami:!ndment cannot be assailed on the above mentioned reasons, doing away with the domiciliary requirement cannot always be the answer since it would remain an obligation .. of the Legislature and the Central Government to define precisely as to what is meant by the expression "ordinarily resident" because that would remain sine qua non for registration of a person as an elector in a particular E Constituency and thus a subject from which one cannot shy away. We would only hope for purposes of its proper application under the relevant provisions of the law concerning elections that the Parliament and the Central Government would take necessary steps to unambiguously define the said expression.

F As regards the criticism that the reasons given in the counter affidavit of the Union of India are distinct from those set out in the Statement of Objects and Reasons of the Bill that became the impugned law, we may only state that the Statement of Objects and Reasons of a proposed legislation is not the compendium of all possible reasons or justification. We do not find any contradiction in the stand taken by the Union of India in these proceedings G in relation to the Statement of Objects and Reasons of the impugned amendment.

Rendering it a case uf 'No qualification' - Abdication of its Function by Parliament

H The counsel for the petitioners have argued that the impugned

KULDIPNAYAR v. U.0.1. [SABHARWAL, CJ.] 113

amendment has dispensed with the only qualification (the residential qualification) that had been built in by the Parliament in the provision to give meaning to the representative character of the person chosen to be the member of the Council of States, and at the same time failed to define or prescribe any other criteria which Parliament regards as relevant for the person elected being a "representative" of that State. They would submit that the marginal note "Qualification for the Membership of Council of States" which had been retained for Section 3 of the RP Act, 1951 had been rendered meaningless.

The learned counsel, Mr. Nariman, would grant that, under Article 84(c) read with Article 327 and Entry 72 of the Union List, it is within the legislative competence of Parliament to define or modify the qualifications for the Member of Parliament by making law from time to time. The Petitioner~ would even concede that the only way of ensuring the representative character may not be by the State being represented by a person "ordinarily resident" in that State which, according to them, was the original method adopted, as reflected in Section 3 of RP Act, 1951 but other links can be found. Thus, it is not disputed that the connection of "residence" could from time to time be changed or amended when circumstances so demanded.

The argument, however, is that Section 3 could be amended by Parliament only so long as it mentioned some qualification for representation of person to be elected as member of Council of States. According to the petitioners, this must be done by putting in position some other appropriate method of ensuring representation of a particular State in the Council of States.

It has been submitted that the impugned amendment had failed to provide alternative additional qualification, since any citizen of India, resident anywhere in India, can now be elected by any State Assembly even when he is ordinarily .. resident, and even when his registration as an elector is, outside that State . No further additional qualifications are provided to indicate his or her usefulness in the debates or discourses to take place in the Council of States.

1t is the contention of the petitioners that on the assumption that there was need for laying down a criteria other than the requirement of residence in a particular State, some different or alternative qualification or method of representation could have been prescribed; such as birth, education, carrying on business or working for gain in the place for a period prescribed or doing philanthropic or charitable work in a State by persons residing outside the State. They argue that some roots or some connection had to be ensured to H

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

· A be existing so as to maintain the representative character of the person to be elected as representative of the particular State.

But, it is the grievance of the petitioners that by the impugned amendment a 'qualification' has been introduced which is not a qualification at all, and which only means that anyone in India who is on the electoral roll of any Parliamentary Constituency in India can be chosen by any State Assembly in India as a representative of that State in the Council of States.

Developing the above argument further, Mr. Nariman submitted that, after the impugned amendment, there is "in effect" no qualification prescribed by Parliament for the person elected being a representative of the particular State, Assembly of which has elected him, since he may be an elector in any Parliamentary Constituency "in India", which according to the Counsel is not a qualification for the person chosen by the particular State Assembly to be a "representative of' that State. It is now left to the entire subjective determination of each State Assembly, to elect any one, even one who is an elector (i.e. ordinarily resident) in any other State or one who has no connection whatsoever with the State that chooses him to be its representative in the Council of States.

It has been argued that by the impugned amendment, Parliament has whilst purporting to set up ''qualification" for membership to the Council of E States failed to have due regard to the expression "representative of the State" in Article 80. The contention is that by this amendment, Parliament has in effect abdicated its allotted function under Article 84(4), which had been examined when enacting Section 3 of the RP Act 195 I by defining as to who would be the representatives of each State in the Council of States, F but this has now been left to be determined in each individual case by the majority of Members of the State Assembly who elect a particular person i.e. irrespective of whether or not the person chosen has any connection with the State by birth, residence, performance of public duties or otherwise.

The argument is that the will of the State assemblies on the issue as to who qualifies to be a representative of the State within the meaning of the expression used in Article 80 is not sufficient or good guide since the question of qualifications had been left by the Constitution to be prescribed by the Parliament and not the members of State Legislative Assemblies. To deny to the State assemblies reference to some criteria prescribed by law by Parliament totally negates one important aspect of federation in the Constitution viz. the effective representation of States in the Council of States.

KULDIP NAYAR v. U.0.1. [SABHARWAL, CJ.] 115

The arguments of the petitioners on above lines do not impress us. It A is all a matter re_lating to the legislative competence of Parliament on which the challenge to the validity falls apart.

The Constitutional provisions dealing with elections to the Council of States are, inter a/ia, contained in Articles 80 and 327. Article 80(4) provides that elections to the Council of States shall be by a system of proportional B .. representation by means of a single transferable vote by the elected members of the legislative assemblies of the States. Article 327, inter alia, provides that subject to the provisions of the Constitution, Parliament may "from time to time" by law make provisions with respect to all matters relating to or in connection with elections to either House of Parliament. c The above provisions leave no room for doubt that the Constitution recognized the need for changes in the law relating to elections from time to time and entrusted Parliament with the responsibility, as also the requisite power, to bring in legislative measures as and when required in such regard, which would include the power to amend the existing measures. Should there be any doubt entertained by any quarter in this respect, reference may be made to the case of Hari Prasad Mulshanker Trivedi v. V.B. Raju & Ors., [1974] 3 SCC 415: [ 1974] I SCR 548, wherein it has been held by this Court that:-

"Article 327 gives full power to Parliament subject to the provisions of the Constitution to make laws with respect to all matters relating ' . to or in connection with elections including the preparation of electoral rolls".

Parliament has the power, rather an exclusive one, under Article 246 to make laws with respect to any of the matters enumerated in the Union List F of the Seventh Schedule. In exercise of the powers conferred on it under Article 246 read with Articles 84 and 327 and Entry 72 of the Union List of the Seventh Schedule to the Constitution, it is a matter for Parliament to decide by making law as to what qualifications "other" than those prescribed in the Constitution be made compulsory to be fulfilled by persons seeking to G fill seats in the Council of States as representatives of the States. It is provided in Article 80(2) that allocation of seats in the Council of States to be filled by the representatives of States and the Union Territories shall be iri accordance with the provisions in that behalf contained in the Fourth Schedule. In Article 80(4), it is provided that the representatives of each State shall be elected by the elected Members ()f the Legislative Assembly of that State in accordance H

I 16 SUPREME COURT REPORTS (2006) SUPP. 5 S.C.R. ..;;::: A with the system of proportional representation by means of a single transferable vote.

Article 84 of the Constitution prescribes the qualifications for membership of Parliament while Article 102 indicates the disqualifications. Under the most relevant clause, Article 84 (c), it is for Parliament to prescribe B "such other qualifications" for membership of the Council of States as it may deem necessary or proper; that is, qualifications other than the two Constitutionally prescribed under Article 84(a) and (b), viz., citizenship of India and minimum age (not less than 30 years). ... Apart from the above, the Constitution does not put any restriction on ... c the legislative powers of the Parliament in this regard.

If the Constitution had intended that the "representatives" of the States must be residents of the State or must have a link or nexus with the State from where the representatives are chosen, that is, link or nexus of the kind mentioned by the petitioners, such a provi>ion would have been expressly D made in this context as has been done in respect of requirement of age and citizenship. In the absence of such express requirement, the requirement of residence or any other nexus as a matter of qualification cannot be read into Articles 80 or 84.

E The fact that a candidate needs to be enrolled in any parliamentary constituency in India does not deprive him of the locus to be the representative of the State simply on the ground that he is not enrolled there.

In People's Union For Civil Liberties & Anr. v. Union of India & Anr., [2003] 4 SCC 399, this Court treated the right to vote to be carrying within F it the Con~titutional right of freedom of expression. But the same cannot be said about the right to stand for election, since that is a right regulated by the statute. • Even without going into the debate as to whether right to vote is a * statutory or Constitutional right, the right to be elected is indisputably a G stacutory right, i.e., the right to stand for elections can be regulated by law made by Parliament. It is pure and simple a statutory right that can be created and taken away by Parliament and, therefore, must always be subject to statutory limitations.

H In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency & ... ..

KULDIPNAYAR v. U.0.1. [SABHARWAL, CJ.] 117

Ors., [ 1952] SCR 218, this Court noticed with approval the decision of Privy A Council in Joseph Theberge & Anr. v. Phillippe Laudry (1876) 2 AC 102, and held that the right to stand as a candidate for election is not a civil right, but is a creation of statute or special law and must be subject to the limitations imposed by it. It was observed in Paragraph 19 of the Judgment as under: -

"The points which emerge from this decision may be stated as follows: B "(I) The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it.

(2) Strictly speaking, it is the sole right of the legislature to examine C and determine alt matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a Special Tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it." D (emphasis supplied)

In the case of Hari Prasad Mulshanker Trivedi (supra), it was reiterated that: -

"The right to stand for election is a statutory right and the statute can E therefore regulate the manner in which the right has to be enforced or the remedy for enforcing it."

Similar view was expressed by this Court once again in Jyoti Basu v. Debi Ghosal, [1982] I SCC 691, in following words:- F "A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law ..> right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory G limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute H

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

A creating it. Concepts familiar to common law and equity must remain strangers to election law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, court is put in a strait-jacket. Thus the entire election process commencing B from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process .. being dealt with by different provisions of the Act. There can be no c election to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any rights claimed in relation to an election or an election dispute .......... "

(emphasis supplied) L

The Constitution by Article 84 has prescribed qualifications for membership of either House of Parliament. Article 84(c) does not make it compulsory for Parliament to prescribe any qualification other than those prescribed by Clauses (a) and (b). Parliament may or may not prescribe some such qualifications, and having prescribed some may repeal them whenever it so desires. It is difficult to accept the argument that once the Parliament prescribes a qualification, it cannot revoke or repeal it. There is no such limitation on Parliament's legislative power, which is confirmed by Entry 72 of the Union List in the Seventh Schedule. The language of Clause (c) of Article 84 creates a power and not a duty. If it is not bound to prescribe any additional qualification, it is also not bound to provide a substitute for the one done away with.

G The thrust of the argument of th(: petitioners is that 'outsider' would be given preference to an 'insider'. This need not be invariably the end result, since outcome of an election would depend on the choice of the Electoral College, viz. the legislative assembly of the State, than on any other factor. In any event, even if an 'outsider' is selected, it is too far-fetched to conten~ H that the "character" of the House would consequently stand altered. •