KULDIP NAYAR v. UNION OF INDIA AND ORS.

· 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. •

KULDIPNAYAR v. U.0.1. [SABHARWAL CJ.] 119 .•

What has been essentially done by the amendment is to provide that A even a person registered as an elector outside the State can contest the election to the Council of States from that State. The choice of the electors has been widened and expanded by making this provision. If the electors so chose, they can always choose a person who has link or nexus with the State, that is link of the kind mentioned by the petitioners. B The argument that the amended Section 3 of RP Act, I 951 is futile or that the impugned amendment makes Section 3 nugatory is not correct. Whilst Article 84 prescribes citizenship of India as qualification for membership Section 3, after the amendment, restricts qualification of member of Council of States to an elector who is resident in India. This would exclude non C resident Indian citizens. This is also a significant restriction. It is, therefore, clear that Section 3 continues to provide a qualification for membership of the Council of States, namely that one has to be a citizen who is a resident of India. All that the impugned amendment has done is to enlarge the scope of consideration for election to the Council of States by removing the restriction that persons qualified to stand would only be electors in the State concerned. D Having regard to the purpose for which the second chamber was conceived, that is to say, to have representation of a wide spectrum of people the amendment does not change the character of the Council of States.

The submission that the Parliament has 'abdicated' its obligations is not correct. In the first place, as has been observed above, it was not obligatory E on Parliament to enact a law regarding qualifications or to frame any qualifications. It is important to note that, even after the amendment, (i) the electors remain the same, namely the State Assemblies; (ii) the elected persons remain representatives of the State; and (iii) the choice and the decision as to whom to elect continues to be with the State Legislative Assemblies. F The field of consideration before the State Assembly is enlarged. But ... the ultimate choice and decision is always that of the State Legislatures . Therefore, if they decide to elect a person who is not ordinarily a resident of the State they would do so with the full knowledge of all circumstances and it would be their decision as to who should be the representative of their G State. This, by no stretch of reasoning, can be said to be an abdication of the Parliament's obligations or functions.

Under the aforesaid Constitutional mandate, Parliament has, inter alia, enacted the RP Acts of 1950 and 1951, as well as the impugned amendment H

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A Act. By the impugned amendment Act, the requirement of being a voter in a particular State has been done away with.

Thus, in our view the arguments raised by the petitioners do not hold water. The impugned amendment to Section 3 of the RP Act, 1951 cannot be assailed as unconstitutional. It passes muster in view of legislative competence. B It does not transgress the provisions of Part Ill of the Constitution, nor for that matter any other provision, express or implied, of the Constitution. The requirement of 'residence' cannot be read in Article 80(4) of the Constitution. The challenge thus must be repelled.

Issue No.II : Secrecy of Voting c Section 59 provided for the 'Manner of voting at elections' to be "by ballot in such manner as may be prescribed". Section 94 made its prescription clear by marginal note reading 'Secrecy of voting not to be infringed', giving immunity mainly to the voter against compulsion to disclose by declaring, in D no uncertain terms, that "No witness or other person shall be required to state for whom he has voted at an election''. Section 128 made further provision for insulating the right of the voter to secrecy of vote from onslaught and '- . arranging 'Maintenance of secrecy of voting' by making it an obligation of every person entrusted with election duties to "maintain, and aid in maintaining, the secrecy of the voting" and, unless so "authorized by or under any law", E not to "communicate to any person any information calculated to violate such secrecy".

Through the impugned amendments a proviso each has been added to Sections 59, 94 and 128, as noted in the beginning of the judgment. These amendments have carved out an exception to the general rule of secrecy for F purposes of the elections for filling up a seat in the Council of States, which is now to be held "by open ballot", thus no longer subject to the principle of secret ballot.

Petitioners' submissions on Open Ballot and Secrecy

G For filling the seats in Council of States, the amendments made in Sections 59, 94 and 128 of the RP Act 1951 have introduced the concept of Open Ballot in place of Secret Ballot.

It has been submitted that the right of secrecy in the election of Members H of Rajya Sabha is an essential part of democracy that is based on free and

KULDIP NAY AR v. U.0.1. [SABHARW AL. CJ.] 121

fair elections. The voters should have freedom of expressing their view through their votes. The impugned amendment violates the right of secrecy by resorting to open ballot system that is nothing but a political move by clique in political parties for their own achievement.

It is contended that the impugned amendments violate the Fundamental Right under Article 19( I)(a) of the Constitution as well as the provisions in the Representation of the People Act, 1951, Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. The petitioners urge that Human Rights contained in Universal Declaration of Human Rights and International Covenant on Civil and Political Rights may be taken in aid of Fundamental Rights to elucidate them and to make them more effective, C

- as has been held in various cases. On the above premise, it has been contended that, the amendments made in Sections 3, 59, 94 and 128, are unconstitutional and violative of Article 19(I)(a) of the Constitution of India.

Submission of Union of India on Open Ballot and Secrecy D The submission is that there is no constitutional requirement that election to the Council of States be conducted "by secret ballot", as has been expressly provided under Article 55(3) and Article 66(1) for elections to the offices of the President of India and the Vice President of India respectively . .. It has been submitted that it was pursuant to the view expressed by the E Ethics Committee of the Parliament in its report dated Ist December, 1998, in the wake of "emerging trend of cross voting in the Rajya Sabha and Legislative Council elections", for the elections "by open ballot" to be examined that the Union of India incorporated such provision through the impugned Act. In· this context reference has been made to the "influence of money power and muscle power in Rajya Sabha elections" and also to the F provisions contained in Tenth Schedule to the Constitution. Union of India contends that after considering the available material and report of the Ethics Committee, it had come to the conclusion that "the secret ballot system had in fact become counter-productive and opposed to the effective implementation of the principles of democratic representation of States in the Rajya Sabha". G

Further submission is that "secret ballot is not an inflexible or mandatory procedure" for ensuring free and fair elections in the country and so the provisibn for open ballot system has been incorporated having regard to "the emerging trends in the election process and as warranted by a rational, reasonable, democratic objective". H

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

A Union of India has also submitted copy of the First Report of the Ethics Committee of Parliament, as adopted on 15th December, 1999 and published by the Rajya Sabha Secretariat, under the chairmanship of Shri S.B. Chavan, which had recommended the open ballot system as follows: -

"19. The Committee has also noted the emerging trend of cross- B voting in the elections for Rajya Sabha and the Legislative Councils in States. lt is often alleged that large sums of money and other considerations encourage the electorate for these two bodies to vote in a particular manner leading sometimes to the defeat of the official candidates belonging to their own political party. In order not to . allow big money and other considerations to play mischief with the c electoral process, the Committee is of the view that instead of secret ballot, the question of holding the elections to Rajya Sabha and the Legislative Councils in States by open ballot may be examined."

The amendments brought about by Act 40 of 2003 which are also D subject matter of challenge in these matters have already been noticed.

Part V of the RP Act, 1951 relates to the "Conduct of Elections". Chapter 4 of the said Part of the RP Act, 1951 covers the topic of "The Poll". Amongst others, it includes Section 59 relating to the "manner of voting on eleqions". E Section 59 of RP Act, 1951 was amended twice in the year 2003, firstly with effect from 22nd March, 2003 by the Election Laws (Amendment) Act, 2003 (Act 24 of 2003) and then with effect from 28th August, 2003 by Act 40 of 2003 (the impugned amendment). The amendment through Act 24 of 2003 is not of much consequence for the present purposes and had only F substituted the words "and no votes shall be received by proxy" with the words "and, save as expressly provided by this Act, no votes shall be received by proxy".

The amendment through Act 40 of 2003 added a proviso to Section 59 G of RP Act, 1951, so as to provide for elections to fill seats in the Council of States to be held ''by open ballot". Section 59, after amendment, reads as under: -

"59. Manner of voting at elections. - At every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed and, save as expressly provided by this Act, no votes shall H •

KULDIP NA y AR V. U.0.1. [SABHARWAL, CJ.] 123 be received by proxy. A Provided that the votes at every election to fill a seat or seats in the Council of States shall be given by open ballot."

There were two other provisions of RP Act, 1951 that were amended by Act 40 of 2003, which changes have been described as amendments consequential to the amendment made to Section 59 .. These others provisions also need to be noticed at this stage.

Part VI of the RP Act, 1951 relates to "Disputes Regarding Elections". The election petitions lie under these provisions to the High Courts. Chapter III of Part VI relates to the "Trial of Election Petitions". Section 94 falling under this Chapter, as originally enacted read as under :

"Secrecy of voting not to be irifringed.-No witness or other person shall be required to state for whom he has voted at an election."

The Act 40 of 2003 has added a proviso to the aforesaid provision. The D amended provision now reads as under: -

"Secrecy of voting not to be infringed-No witness or other person shall be required to state for whom he has voted at an election.

Provided that this section shall not apply to such witness, or other E person where he has voted by open ballot."

Part VII of RP Act, 1951 relates to the "Corrupt Practices and Electoral Offences". Chapter I defines "Corrupt Practice". Chapter III relates to "Electoral Offences". Section 128 falling in this Chapter, as originally enacted read as under: -" F

128. Maintenance of secrecy of voting.-(1) Every officer, clerk, agent or other person who performs any duty in connection with the recording or counting of votes at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall not (except for some purpose authorized by or under any law) communicate to any G person any information calculated to violate such secrecy.

· (2) Any person who contravenes the provisions of sub section (I) shall be punishable with imprisonment for a term which may .t;xtend to three months or with fine or with both.'~ H

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A Act 40 of 2003 has added a proviso to sub-section (I) so as to carve out an exception in relation to the election to the Council of States. After amendment, sub-section (I) of Section 128 reads as under :

"128. Maintenance of secrecy of voting.-{ 1) Every officer, clerk, agent or other person who performs any duty in connection with the recording or counting of votes at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall not (except for some purpose authorized by or under any law) communicate to any person any information calculated to violate such secrecy. .. Provided that the provisions of this sub-section shall not apply to such officer, clerk, agent or other person who performs any such duty at an election to fill a seat or seats in the Council of States."

The cumulative effect of the amendments to Sections 59, 94 and 128 of RP Act, 1951, brought about by Act 40 of 2003 thus is that the elections for tilling up a seat in the Council of States is now to be held "by open ballot''. The requirement of maintenance of secrecy of voting is now made subject to an exception mentioned in the proviso.

Free and Fair Elections

The learned Counsel representing the petitioners, while arguing on the challenge to the impugned amendment respecting the secrecy of ballot in the election to fill the seats of the representatives of the States in the Council of States again referred to the 'basic structure' theory and submitted that democracy was part of the basic features of the Constitution. They would submit that free and fair- election was a concept inherent in the democratic p values adopted by our polity.

There cannot be any quarrel with these preliminary propositions urged on behalf of the petitioners.

It has been authoritatively held, time and again, by this Court that G democracy is a basic feature of the Constitution of India, one that is not amenable to the power of amendment of the Parliament under the Constitution. It has also been the consistent view of this Court that the edifice of democracy in this country rests on a system of free and fair elections. These principles are discernible not only from the preamble, which has always been considered as part of the Constitution, but also from its various provisions. Should there < . H be any doubt still lurking in any mind, the following cases can be referred

KULDIPNAYAR v. U.0.1. [SABHARWAL.C.J.) 125 to, with advantage, in this context. .A The views of Sikri, CJ in Kesavananda Bharati, expressed in Paragraph 292, have been noticed, in extenso, earlier in the context of plea regarding federalism. He has clearly referred to "Republican and Democratic form of Government" as one of the features constituting the basic structure of the Constitution. B In the same case, Shela! & Grover JJ, in their separate judgment, also found "Republican and Democratic form of government and sovereignty of the country" amongst "the basic elements of the. constitutional structure" as · discernible from "the historical background, the preamble, the entire scheme C of the Constitution, relevant provisions thereof including Article 368".

Hegde and Mukherjee JJ, observed in their judgment that "the basic elements and fundamental features of the Constitution" found "spread out in various other parts of the Constitution" are also set out "in the provisions relating to the sovereignty of the country, the Republican and the Democratic D character of the Constitution".

In the words of Jaganmohan Reddy, J in his separate judgment, the "elements of the basic structure are indicated in the Preamble and translated in the various provisions of the Constitution" and the "edifice of our Constitution is built upon and stands on several props" which, if removed E would result in the Constitution collapsing and which include the principles of 'Sovereign Democratic Republic' and 'Parliamentary democracy', a polity which is "based on a representative system in which people holdihg opposing view to one another can be candidates and invite the electorate to vote for them". F The views of this Court, as expressed in Paragraph 264 of the judgment in Indira Nehru Gandhi have been extracted in earlier part of this judgment. Suffice it to note here again that the law laid down by the majority in Kesavananda Bharati (supra) was taken note of and on the question "as to what are the basic structures of the Constitution", it was found to "include G supremacy of the Constitution, democratic republican form of Government".

The following observations in Paragraph 198 of the judgment in Indira Nehru Gandhi (supra) also need to be noticed as they are relevant in the context of the principle that 'free and fair elections' lies at the core of .... democracy: - H

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A "198. This Court in the case of Kesavananda Bharati held by majority that the power of amendment of the Constitution contained in Article 368 does not permit altering the basic structure of the Constitution. All the seven Judges who constituted the majority were also agreed that democratic set-up was part of the basic structure of the Constitution. Democracy postulates that there should be periodical B elections, so that people may be in a position either to re-elect the old representatives or. if they so choose. to change the representatives and elect in their place other representatives. Democracy further contemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice. c Democracy can indeed fimction only upon the faith that elections are free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of defence to mass opinion. Free and fair elections require that the candidates and their agents should not resort to unfair means or malpractices as may D impinge upon the process of free and fair elections."

(emphasis supplied)

Mohinder Singh Gill v. Chief Election Commissioner, (1978] 1 SCC 405, is another case that is significant in the present context. In Paragraph 2, E the following words indicated the controversy in the preface: -

"2. Every significant case has an unwritten legend and indelible lesson. This appeal is no exception, whatever its formal result. The message, as we will see at the end of the decision, relates to the pervasive philosophy of democratic elections which Sir Winston Churchill F vivified in matchless, words: "At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper-no amount of rhetoric or voluminous

- discussion can possibly diminish the overwhelming importance G of the point." If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men "dressed in little, brief authority". For "be you ever so high, the law is above you"." H .

KULDIP NAY AR v. U.0.1. [SABHARWAL, CJ.] 127 The Court spoke in Paragraph 23 about the philosophy of election in A a democracy, which reads as under: -

"Democracy is government by the people. It is a continual participative operation, not a .cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of this proxy. Although the full flower of participative Government rarely blossoms, ihe minimum credential of popular Government is appeal to the people after every term for .... a renewal of confidence. So we have adult franchise and general elections as constitutional compulsions. "The right of election is the very essence of the constitution" (Junius). It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more."

(emphasis supplied) D Some of the important holdings were set down in Paragraph 92 of the aforementioned judgment "for convenience" and to "synopsize the formulations". The holdings included the following: -

" ...... (2)(a) The Constitution contemplates a free and fair election and vests comprehensive responsibilities of superintendence, direction and E control of the conduct of elections in the Election Commission. This responsibility may cover powers, duties and functions of many sorts, administrative or other, depending on the circumstances.

(b) Two limitations at least are laid on its plenary character in the exercise thereof. Firstly, when Parliament or any State Legislature F has made valid law relating to or in connection with elections, the Commission, shall act in conformity with. not in violation of, such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from, pushing forward a free and fair election with expedition. Secondly, the G Commission shall be responsible to the rule of law, act bona fide and - be amenable to the nonns of natural justice insofar as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order viz. elections. Fairness does import an obligation to see that no wrongdoer candidate benefits by his own wrong. To put the matter H

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A beyond doubt, natural justice enlivens and applies to the specific case of order for total re-poll, although not in full panoply but in flexible practicability. Whether it has been complied with is left open for the Tribunal's adjudication ..... "

(emphasis supplied) B The case reported as S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, [1980] Supp. SCC 53 is also relevant for purposes at hand. While construing the provisions of the RP Act, 1951, this Court expressed the following views: -

C "..... An Act to give effect to the basic feature of the Constitution adumbrated and boldly proclaimed in the preamble to the Constitution viz. the people of India constituting into a sovereign, secular, democratic republic, has to be interpreted in a way that helps achieve the constitutional goal. .... The goal on the constitutional horizon being D of democratic republic, a free and/air election, a fountain spring and cornerstone of democracy, based on universal adult suffrage is the basic. The regulatory procedure for achieving free and fair election for setting up democratic institution in the country is provided in the Act."

E (emphasis supplied)

The case reported as Kihoto Hollohan v. Zachillhu & Ors., [1992] Supp 2 SCC 651, also resulted in similar views being reiterated by this Court in the following words: -

F "179. Democracy is a part of the basic structure of our Constitution; and rule of law, and free and fair elections are basic features of democracy. One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority ... "

G (emphasis supplied)

That Parliament2ry democracy is part of the basic structure of the Constitution was reiterated by this Court in P. V. Narasimha Rao 's case (supra) in following words:

H "As mentioned earlier, the object of the immunity conferred under

KULDIPNAYAR v. U.0.1. [SABHARWAL,CJ.] 129 Article I 05(2) is to ensure the independence of the individual A 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."

In the case reported as Union of India v. Association for Democratic B Reforms & Anr., (2002) 5 SCC 294, this court reiterated as under: -

"21. Further, it is to be stated that: (a) one of the basic structures of our Constitution is "republican and democratic form ofgovernment"; (b) the election to the House of the People and the Legislative Assembly is on the basis of adult suffrage, that is to say, every person who is a citizen of India and who is not less than 18 years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under the Constitution or any law on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election (Article 326); (c) holding of any asset (immovable or movable) or any educational qualification is not the eligibility criteria to contest election; and (d) under Article 324, the superintendence, direction and control of the "conduct of all elections" to Parliament and to the legislature of every State vests in the Election Commission. The phrase "conduct of elections" is held to be of wide amplitude which would include power to make all necessary provisions for conducting free and fair elections."

(emphasis supplied) F In People's Union for Civil Liberties (PUCL), this Court held that "It also requires to be well understood that democracy based on adult franchise is part of the basic structure of the Constitution."

There can thus be no doubt about the fact that democracy is a basic feature of the Constitution of India and the concept of democratic form of G government depends on a free and fair election system.

It is the contention of the writ petitioners that free and fair election is a constitutional right of the voter, which includes the right that a voter shall be able to cast the vote according to his choice, free will and without fear, H

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A on the basis of information received. The disclosure of choice or any fear or compulsion or even a political pressure under a whip goes against the concept of free and fair election, and that immunity from such fear or compulsion can be ensured only ifthe election is to be held on the principle of"secret ballot''. These submissions need elaborate examination.

B Right to vote-a Constitutional/Fundamental right

The learned Counsel have submitted that right to vote in an election under the Constitution of India, which includes the election of the representatives of States in the Council of States, as per the provisions • C contained in Article 80(4), is a Constitutional right, if not a Fundamental right.

Reliance has been placed in this context by the petitioners on the Union of India v. Association for Democratic Reforms and Anr. (supra) wherein this Court was considering the right of the voter to know about the candidates contesting election. Having found that such a right existed, it was observed in Paragraph 22 as under:-

" ..... In democracy, periodical elections are conducted for having efficient governance for the country and for the benefit of citizens- voters. In a democratic form of government, voters are of utmost importance. They have right to elect or re-elect on the basis of the antecedents and past performance of the candidate. The voter has the choice of deciding whether holding of educational qualification or holding of property is relevant for electing or re-electing a person to be his representative. Voter has to decide whether he should cast vote in favour of a candidate who is involved in a criminal case. For F maintaining purity of elections and a healthy democracy, voters are required to be educated and well informed about the contesting candidates .... "

(emphasis supplied)

G In Paragraph 46 of the judgment, the legal and constitutional position emerging from the discussion was summed up thus:-

4. To maintain the purity of elections and in particular to bring H transparency in the process of election, the Commission can ask the

KULDIPNAYAR v. U.O.L [SABHARWALCJ.] 131

candidates about the expenditure incurred by the political parties and A . this transparency in the process of election would include transparency of a candidate who seeks election or re-election. In a democracy, the electoral process has a strategic role. The little man of this counlry would have basic elementa1)1 right tu know full particulars of a candidate who is lo represent him in Parliament where laws to bind his liberty and property may be enacted.

5. The right to get information in democracy is recognised all throughout and it is a natural right flowing from the concept of democracy. At this stage, we would refer to Article 19(1) and (2) of the International Covenant on Civil and Political Rights, which is as under:

"(!) Everyone shali have the right to hold opinions without interference. (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."

7. Under our Constitution, Article 19(I)(a) provides for freedom of speech and expression. Voter's speech or expression in case ofelection would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must Voter's (little man-citizen's) right to know antecedents including criminal past of his candidate contesting F election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law-breakers as law-makers."

(emphasis supplied) G This Court thus held in the above-mentioned case that a proper disclosure of the antecedents by candidates in an election in a democratic society might influence intelligently the decisjons made by the voters while casting their votes. Casting of a vote by a mis-informed and non-informed voter, or a voter having one sided information only, is bound to affect the democracy H

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A seriously. This Court, therefore, gave certain directions regarding the necessity of each candidate furnishing information.

The views expressed in Jyoti Basu (supra) have already been extracted earlier. It may be noticed again that in that case this Court had found that a ;'right to elect, fundamental though it is to democracy, is, anomalously enough, B neither a fundamental right nor a common law right. It is pure and simple, a statutory right" and that "Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election".

Certain amendments in the law were brought about in the wake of the . C judgment of this Court in Union of India v. Assn. for Democratic Reforms (supra). This Court proceeded to examine as to whether the amendments . were legal in People's Union for Civil Liberties (PUCL).

In People's Union for Civil Liberties, the above views in Jyoti Basu 's case were extracted by Shah, J. It may be added that same views were also 0 reiterated in Rama Kant Pandey v. Union of India, (1993] 2 SCC 438, wherein it was said, "the right to vote or to stand as a candidate for election is neither a fundamental nor a civil right".

The following observations of Shah, J. in Paragraph 62 of the judgment in People's Union for Civil Liberties (PUCL) (supra), need to be borne in mind: -

" .....Such a voter who is otherwise eligible !o cast vote to elect his representative has statutory right under the Act to be a voter and has also a fundamental right as enshrined in Chapter IIl.. ... .lf any statutory provision abridges fundamental right, that statutory provision would be void .... The right of an adult to take part in election process either as a voter or a candidate could be restricted by a valid law which does not offend constitutional provisions .."

In same case, P.V. Reddi J., in his separate judgment observed as under in Paragraph 94: - G " ..... In a democratic republic, it is the will of the people that is paramount and becomes the basis of the authority of the Government. The will is expressed in periodic elections based on universal adult suffrage held by means of secret ballot.. .. Nothing is therefore more important for sustenance of democratic polity than the voter making H

KULDIP NAY AR v. U.0.1. [SABHARWAL, CJ.] 133 an intelligent and rational choice of his or her representative. For this, A the voter should be in a position to effectively formulate his/her opinion and to ultimately express that opinion through ballot by casting the vote. The concomitant of the right to vote which is the basic postulate of democracy is thus twofold: first, formulation of opinion about the candidates and second, the expression of choice by casting the vote in favour of the preferred candidate at the polling booth .... The B voter/citizen should have at least the basic information about the contesting candidate, such as his involvement in serious criminal - offences .... An enlightened and informed citizenry would undoubtedly enhance democratic values. Thus, the availability of proper and relevant information about the. candidate fosters and promotes the freedom of speech and expression both from the point of view of imparting and receiving the information .... .! would say that such information will certainly be conducive to fairness in election process and integrity in public life. The disclosure of info1mation would facilitate and augment the freedom of expression both from the point of view of the voter as well as the media through which the infonnation is publicized and openly debated."

(emphasis supplied)

In Paragraph 95, he proceeded to observe as under:-". E " ....... As observed by this Court in Assn. for Democratic Reforms case a voter "speaks out or expresses by casting vote". Freedom of expression, as contemplated by Article 19(1)(a) which in many respects overlaps ·and coincides with freedom of speech, has manifold meanings. It need not and ought not to be confined to expressing something in words orally or in writing. The act of manifesting by action or language is one of the meanings given in Ramanatha Aiyar's Law Lexicon (edited by Justice Y.V. Chandrachud) .... Having regard to the comprehensive meaning of the phrase "expression", voting can be legitimately regarded as a form of expression. Ballot is the instrument by which the voter expresses his choice between candidates or in respect to prop9sitions; and his "vote" is his choice or election, as expressed by his ballot (vide A Dictionary of Modern Legal Usage, 2nd Edn., by A. Gamer Bryan). "Opinion expressed, resolution or decision carried, by voting" is one of the meanings given to the expression "vote" in the New Oxford Illustrated Dictionary. It is well H

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A settled and it needs no emphasis that the fimdamental right offreedom of speech and expression should be broadly construed and it has been so construed all these years. In the light of thi~, the dictum of the Court that the voter "speaks out or expresses by casting a vote" is apt and well founded. l would only reiterate and say that freedom of voting ~Y expressing preference for a candidate is nothing but freedom B of expressing oneself in relation to a matter of prime concern to the country and the voter himself "

(emphasis supplied)

After referring to the view expressed in Jyoti Basu v. Debi Ghosal C (supra) that the right to elect is "neither a fundamental right nor a common law right" but "pure and simple, a statutory right", Reddi J. in Paragraph 97 of the judgment further observed as under: -

" ..... With great reverence to the eminent Judges, I would like to clarifY that the right to vote, if not a fundamental right, is certainly a D constitutional right. The right originates from the Constitution and in accordance with the constitutional mandate contained in Article 326, the right has been shaped by the statute, namely the RP Act. That, in my understanding, is the correct legal position as regards the nature of the right to vote in elections to the House of the People and E Legislative Assemblies. It is not very accurate to describe it as a statutory right, pure and simple. Even with this clarification, the argument of the learned Solicitor-General that the right to vote not being a fundamental right, the information which at best facilitates meaningful exercise of that right cannot be read as an integral part of any fundamental right, remains to be squarely met. Here; a distinction has to be drawn between the conferment of the right to vote on fulfilment of requisite criteria and the culmination of that right in the final act of expressing choice towards a particular candidate by means of ballot. Though the initial right cannot be placed on the pedestal of a fundamental right, but, at the stage when the voter goes to the polling booth and casts his vote, his freedom to express arises. The casting of vote in favour of one or the other candidate tantamounts to expression of his opinion and preference and that final stage in the exercise of voting right marks the accomplishment of freedom of expression of the voter. That is where Article 19(1)(a) is attracted.

- KULDIP NAYAR v. U.0.1. [SABHARWAL, CJ.] 135 Freedom of voting as distinct from right to vote is thus a species of A freedom of expression and therefore carries with it the auxiliary and complementary rights such as right to secure information about the candidate which are conducive to the freedom .... "

(emphasis supplied) B Dharmadhikari, J., agreed with Shah, J. and in his separate judgment observed thus: -

"129. Democracy based on "free and fair elections" is considered as . a basic feature of the Constitution in the case of Kesavananda Bharati. Lack of adequate legislative will to fill the vacuum in law for reforming C the election process in accordance with the law declared by this Court in the case of Assn. for Democratic Reforms obligates this Court as an important organ in constitutional process to intervene."

The argument of the petitioners is that the majority view in the case of People's Union for Civil Liberties, therefore, was that a right to vote is a D constitutiol)al right besides that it is also a facet of fundamental right under Article 19(l)(a) of the Constitution.

We do not agree with the above submission. It is clear that a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression, while reiterating the view in Jyoti Basu E v. Debi Ghosal (supra) that a right to elect, fundamental though it is to democracy, is neither a fundamental right nor a common law right, but pure and simple, a statutory right.

Even otherwise, there is no basis to contend that the right to vote and F elect representatives of the State in the Council of States is a Constitutional right. Article 80(4) merely deals with the manner of election of the representatives in the Council of States as an aspect of the composition of the Council of States. There is nothing in the Constitutional provisions declaring the right to vote in such election as an absolute right under the Constitution. G Arguments based on Legislative Privileges and Tenth Schedule

Be that as it may, the moot contention that has been raised by the petitioners is that the election of members of the Council of States is provided for in the Constitution and, therefore, is a part of the Constitution and that it is inherent requirement of the principle of free and fair election that the H

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

A right to vote be invariably accompanied by the right of secrecy of vote so as to ensure that the freedom of expression through vote is real.

Arguments based on Legislative Privileges and Tenth Schedule

It is the contention of Mr. Rao that apart from Article 19(l)(a), freedom B of voting is Constitutionally guaranteed to a Member of a Legislative Assembly by Article 194(1) and (2) in absolute terms. While the right under Article 19(1 )(a) is subject to reasonable restrictions that may be imposed by law under Article 19(2), the freedom to vote under Article 194(1) and (2) is absolute. He would refer to Special Reference No. I of 1964 [ 1965] I SCR C 413 and Tej Kiran Jain & Ors. v. N. Sanjiva Reddy & Ors., [1971] I SCR 612.

Article 194 relates to the "Powers, privileges, etc., of the Houses of Legislatures and of the members and committees thereof'. It is akin to the provisions contained in Article I 05 that pertain to "Powers, privileges, etc., D of the Houses of Parliament and of the members and committees thereof'. It would be proper to take a look at the provisions in question.

Articles 105 and 194 run as follows :-

"105. Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof-{!) Subject to the provisions E of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.

(2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in F Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.

(3) In other respects, the powers, privileges and immunities of each G House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty-fourth Amendment) Act, 1978. H

KULDIPNAYAR v. U.0.1. [SABHARWAL, CJ.] 137 (4) The provisions of clauses (!), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament." ·

"194. Powers, privileges, etc., of the Houses of Legislatures and of the members and committees thereof-( I) Subject to the provisions of this Constitution and to. the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech jn the Legislature of every State.

(2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings. D (3) Jn other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and E committees immediately before the coming into force of Section 26 of the Constitution (Forty-fourth Amendment) Act, 1978].

(4) The provisions of clauses(!), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of the F Legislature of a State or any committee thereof as they apply in relation to members of that Legislature."

Jn Special Reference No. I of 1964 [1965) 1 SCR 413), this Court examined the provisions contained in Article 194. The issues concerned the constitutional relationship between the High Court and the State Legislature. G The President of India had made a Reference under Article 143(1) to this Court against the backdrop of a dispute involving the Legislative Assembly of the State of Uttar Pradesh and two Judges of the High Court. The factual matrix of the case would show that the State Assembly had committed an individual to prison for its contempt. The prisoner had preferred a petition H

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A under Article 226 on which the judges of the High Court had ordered his release on interim bail. The State Assembly found that in entertaining the petition and granting bail, the judges of the High Court had also committed contempt of the State Legislature and thus issued process, amongst others, against the said two High Court Judges.

B This Court found that Article 194 (I) makes it clear that "the freedom of speech in the Legislature of every State which it prescribes, is subject to the provisions of the Constitution, and to the rules and standing orders, regulating the procedure of the Legislature" and that while interpreting the said clause "it is necessary to emphasize that the provisions of the Constitution C subject to which freedom of speech has been conferred on the legislators, are not the general provisions of the Constitution but only such of them as relate to the regulation of the procedure of the Legislature''. In this view, it was the opinion of this Court that while Article 194 (I) "confers freedom of speech on the legislators within the legislative chamber'', Article 194(2) "makes it plain that the freedom is literally absolute and unfettered." D In Te) Kiran Jain v. N. Sanjiva Reddy (supra), the issue was as to whether proceedings could be taken in a court of law in respect of what was said on the floor of Parliament in view of Article I 05(2) of the Constitution. It arose out of a suit for damages being filed against the respondents on the allegation that they had made defamatory statements on the floor of the Lok E Sabha during a Calling Attention Motion against Shankaracharya. The High Court had ruled against the proposition. Reference was made in appeal to an observation of this Court in Special Reference No. I of 1964, where this Court dealing with the provisions of Article 212 of the Constitution had pointed out that the immunity under that Article was against an alleged irregularity of p procedure but not against an illegality, and contended that the same principle should be applied to determine whether what was said was outside the discussion on a Calling Attention Motion. It was submitted that the immunity granted by Article I05 (2) was to what was relevant to the business of Parliament and not to something that was utterly irrelevant.

G This Court, dealing with the contentions of the appellants, held as under:-

"In our judgment it is not possible to read the provisions of the article in the way suggested. The article means what it says in language which could not be plainer. The article confers immunity inter a/ia in respect of "anything said ..... in Parliament". The word "anything" H

KULDIP NAY AR v. U.0.1. [SABHARWAL, CJ.] 139 is of the widest import and is equivalent to "everything". The only limitation arises from the words "in Parliament" which means during the sitting of Parliament and in the course of the business of Parliament. We are concerned only with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any Court this immunity is not only complete but is as it should be. It is of the essence of parliamentary

_ .. system of Government that people's representatives should be free to express themselves without fear of legal consequences. What they say is only subject tci the discipline of the rules of Parliament, the good sense of the members and the control of proceedings by the Speaker. C The Courts have no say in the matter and should re<dly have none."

(emphasis supplied)

It is the contention of the learned counsel that the same should be the interpretation as to the scope arid tenor of the provision contained in Article D 194 (2) concerning the privileges of the Members of the Legislative Assemblies of the States who constitute State wise electoral colleges for electing representatives of each State in the Council of States under the provisions of Article 80(4). The counsel argue that the freedom of expression without fear of legal consequences as flowing from Article 194(2) should inure to the Members of the Legislative Assemblies while discharging their function as electoral college under Article 80(4).

This argument, though attractive, does not deserve any credence in the context at hand. The proceedings concerning election under Article 80 are not proceedings of the "House of the Legislature of State" within the meaning of Article 194. It is the elected members of the Legislative Assembly who constitute, under Article 80 the Electoral College for electing the representative of the State to fill the seat allocated to that State in the Council of States. It is noteworthy that it is not the entire Legislative Assembly that becomes the Electoral College, but only the specified category of members thereof. When such members assemble at a place, they do so not to discharge functions assigned under the Constitution to the Legislative Assembly. Their participation in the election is only on account of their ex-officio capacity of voters for the election. Thus, the act of casting votes by each of them, which also need not occur with all of them present together or at the same time, is merely exercise of franchise and ncit proceedings of the legislature. H

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A It is time to take up the arguments based on the Tenth Schedule.

Tenth Schedule was added to the Constitution by the Constitution (Fifty- second Amendment) Act, 1985, with effect from !st March 1985. The purpose of the said amendment as declared in the Objects and Reasons was to combat the "evil of political defections" which have been "a matter of national concern" and which menace has the potency to "undermine the very foundations of our democracy and the principles which sustain it".

The said amendment also added sub-Articles (2) to Articles I02 and 191 that pertained to Disqualifications for membership of the Houses of Parliament and Houses of State Legislature respectively. Paragraph 1 (a) of the Tenth Schedule also confirms its application to "House" which has been defined to mean "either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State". The new sub- Articles declared, in identical terms, that a "person shall be disqualified for being a member" of either of the said Houses "if he is so disqualified under the Tenth Schedule". Paragraph 2 of the Tenth Schedule, to the extent germane here, may be extracted as under : -·

"2. Disqualification on grow1d of defection.-( 1) Subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the E House...... (a) XXXXXXX; or

(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without F obtaining, in either case, the prior permission of such political party, person or authority, and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. Explanation.-For the purposes of this sub-paragraph- G (a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member;

H (b) a nominated member of a House shall- . .•

KULDIPNAYAR v. U.0.1. [SA.BHARWAL,CJ.] 141 (i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party;

(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of Article 99 or, as the case may be, Article 188.

XXXXXXXXX"

It is the contention of the petitioners that the fact that election to fill the seats in the Council of States by the legislative assembly of the State involves 'voting', the principles of Tenth Schedule are attracted. They argue that the application of the Tenth Schedule itself shows that open ballot system tends to frustrate the entire election process, as also its sanctity, besides the provisions of the Constitution and the RP. Act. They submit that the open ballot system, coupled with the looming threat of disqualification under the Tenth Schedule D reduces the election to a political party issuing a whip and the candidate being elected by a show of strength. This, according to the petitioners, will result in people with moneybags occupying the seats in the Council of States.

The respondents opposing the petitions would, on the other hand, argue E that. the Tenth Schedule does not apply to the election in the Council of States. Its application is restricted to the proceedings in the House of Legislature and it has no application to the election conducted under the RP Act. Nonetheless, learned Counsel would argue, the principles behind making the elections by open ballot further the Constitutional provisions in the Tenth Schedule. F It has to be borne in mind that the party system is we II recognized in Indian context. ·sections 29-A to 29-C of the RP Act, 1951 speak of registration of political parties and some of their privileges and obligations.

In S.R. Bommai, this Court ruled as under: - G "104. What is further-and this is an equally, if not more important aspect of our Constitutional law we have adopted a pluralist democracy. It implies, among other things, a multi-party system. Whatever the nature of federalism, the fact remains that as stated H

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

A above, as per the provisions of the Constitution, every State is constituent political unit and has. to have an exclusive Executive and Legislature elected and constituted by the same process as the Union Government. Under our political and electoral system, political parties may operate at the State and national level or exclusively at the State level. There may be different political parties in different States and B at the national level. Consequently, situations may arise, as indeed they have, when the political parties in power in various States and at the Centre may be different. It may also happen-as has happened till date-that through political bargaining, adjustment and understanding, a State level party may agree to elect candidates of a c national level party to Parliament and vice versa. This mosaic of variegated pattern ofpolitical life is potentia!/y inherent ma pluralist multi-party democracy like ours. Hence the temptation of the political party or parties in power (in a coalition Government) to destabilise or sack the Government in the State not run by the same political party or parties is not rare and in fact the experience of the working of Article 356(1) since the inception of the Constitution, shows that the State Governments have been sacked and the Legislative Assemblies dissolved on irrelevant, objectionable and unsound grounds. So far the power under the provision has been used on more than 90 occasions and in almost all cases against Governments run by political parties in opposition. If the fabric of pluralism and pluralist democracy and the unity and integrity of the country are to be preserved, judiciary in the circumstances .is the only institution which can act as the saviour of the system and of the nation."

(emphasis supplied) F Some of the observations appearing at pages 485-486 in Kesavananda Bharati are also relevant and are extracted hereunder: -

"Further a Parliamentary Democracy like ours functions on the basis of the party system. The mechanics of operation of the.party system G as well as the system of Cabinet Government are such that the people as a whole can have little control in the matter of detailed law-making. " ...... on practically every issue in the modem State, the serried millions of voters cannot do more than accept or reject the solutions offered. The stage is too vast to permit of the nice shades of quantitative distinctions impressing themselves upon the public mind. It has rarely H

KULDIPNAYAR v. U.O.l. [SABHARWALCJ.] 143

the leisure, and seldom the information, to do more than indicate the A general tendency of its will. It is in the process of law-making that the subtler adjustments must be effected." (Laski: A Grammar of Politics, Fifth Edn., pp. 313-314)."

(emphasis supplied) B The Tenth Schedule of the Constitution recognizes the importance of the political parties in our democratic set-up, especially when dealing with Members of the Houses of Parliament and the Legislative Assemblies or Councils. The validity of the Tenth Schedule was challenged on various grounds, inter alia, that a political party is not a democratic entity and the imposition of whips on Members of Parliament was not in accordance with C the Constitutional scheme. Rejecting this argument, this Court held that it was open for Parliament to provide that its Members, who have been elected on a party ticket, act according to the decisions made by the party and not against it. D In Kihoto Hallahan v. Zachillhu (supra) , it was held that: -

"43. Par/iamentG1y democracy envisages that matters involving implementation of policies of the government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging lo the same political party may also have, and may give expression to, differences of opinion on a matter. Not unoften the views expressed by the Members in the.House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstinence from voting in the House otherwise than on party lines.

44. But a political party functions on the strength of shared beliefs. G Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in fiirtherance of those commonly held principles. Any freedom of its Members to vote as they please independently of the political party's declared policies will not only embarrass its public image and popularity but also H

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

A undermine public confidence in it which, in the ultimate analysis, is its source of sustenance-nay, indeed, its very survival. Intra-party debates are of course a different th\ng. But a public image of disparate stands by Members of the same political party is not looked upon, in political tradition, as a desirable state of things. Griffith and Ryle on Parliament Functions, Practice and Procedure (I 989 edn., p. 119) B say:

"Loyalty to party is the norm, being based on shared beliefs. A divided party is looked on with suspicion by the electorate. It is natural for Members to accept the opinion of their Leaders and Spokesmen on the wide variety of matters on which those Members c have no specialist knowledge. Generally Members will accept majority decisions in the party even when they disagree. It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy. To abstain from voting when required D by party to vote is to suggest a degree of unreliability. To vote against party is disloyalty. To join with others in abstention or voting with the other side smacks of conspiracy."

(emphasis supplied)

E Clause (b) of sub-para (/) of Paragraph 2 of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who votes or abstains from voting contrary to "any directions" issued by the political party. The provision, however, recognises two exceptions: one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission but his action has been condoned by the political party. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs. This, in itself again, may provide a clue to the proper understanding and construction of the expression "any direction" in clause (b) of Paragraph 2( I) whether really all directions or whips from the party entail the statutory consequences or whether having regard to the extraordinary nature and sweep of the power and the very serious consequences that flow including the extreme penalty of H

KULDIPNAYAR v. U.0.1.[SABHARWAL,CJ.) 145 disqualification the expression should be given a meaning confining A its operation to the contexts indicated by the objects and purposes of the Tenth Schedule. We shall deal with this aspect separately."

(emphasis supplied)

In Paragraph I 22, this Court proceeded to hold as under:- B

122. While construing Paragraph 2(1)(b) it cannot be ignored that under the Constitution Members of Parliament as well as of the State .... legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the Constitution and the rules and standing orders regulating the Procedure of the House [Article 105(1) c and Article 194(1 )]. The disqualification imposed by Paragraph 2(J)(b) must be so construed as not to unduly impinge on the said freedom of speech of a Member. This would be possible if Paragraph 2(J){b) is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule, namely, to curb .the evil or mischief of political defections motivated by the lure of office or other similar considerations. The said object would be achieved if the disqualification incurred on the ground of voting or abstaining from voting by a member is confined to cases where a change of government is likely to be brought about or is prevented, as the case may be, as a result of such voting or abstinence or when such voting or abstinence is on a matter which was a major policy and programme on which the political party to which the Member belongs went to the polls. For this purpose the direction given by the political party to a Member belonging to it, the violation of which may entail disqualification under Paragraph 2(l)(b), would have to be limited to a vote on motion of confidence or no confidence in the government or where the motion under consideration relates to a matter which was an integral policy and programme of the political party on the basis pf which it approached the electorate. The voting or abstinence from voting by a Member against the direction by the political party on such a motion would amount to disapproval of the programme on the basis of which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate."

.. ~. (emphasis supplied) H

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

A It is not without significance that, barring the exception in case of independents, which are few and far between, experience has shown that it is the political parties that mostly set up the members of legislatures at the Centre or in the States. We may also refer to the nomination papers prescribed under the Conduct of Election Rules, 1961 for election to the Council of B States, being Form 2-C, or for election to the State Legislative Assembly, being Form 2B, each of which require a declaration to be made by the candidate as to particulars of the political party that has set him up in the election. This declaration binds the elected legislators in the matter of allegiance to the political party in all matters including, and we find the Attorney General is not wrong in so submitting, the support of the party to C a particular candidate in election to the Council of States. Yet, in view of the law laid down in Kihoto Ho/lohan v. Zachil/hu (supra), it is not correct to contend that the open ballot system tends to expose the members of the Legislative Assembly to disqualification under the Tenth Schedule since that part of the Constitution is meant for different purposes.

D International Conventions

The counsel for the petitioners have also submitted that International Instruments put emphasis on "secret ballot" since it lays the foundation for ensuring free and fair election which in tum ensures a democratic government showing the true will of the people. The significance of this emphasis lies in E the recognition that it is ademocratic Government that is ultimately responsible for protecting the Human Rights of the people, viz., civil, political, social and economic rights.

In above context, reference was made to the Universal Declaration of F Human Rights and International Convention on Civil and Political Rights (JCCPR).

Universal Declaration of Human Rights, through Article 2 I provides as under: -

"( 1) Everyone has the right to take part in the government of his G country, directly or through freely chosen representatives.

(2) Everyone has the right of eqm1l access to public service in his country.

(3) The will of the people shall be the basis of the authority of H •

KULDIPNAYAR v. U.0.1.[SABHARWAL,CJ.] 147 government; this will shall be expressed in periodic and genuine A elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures."

International Convention on Civil and Political Rights (ICCPR), in its Article 25 provides as under: - B "Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives; C (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access,.on general tenns of equality, to public service D in his country."

Both the documents, thus, provide for fonnation of a government through secret ballot. Prime importance is given in these two Human Rights instruments on "will of the electors" giving basis to the authority of Government. It may however be noticed that in Article 21 of Universal Declaration of Human E Rights the requirement is satisfied not necessarily by secret ballot but even "by equivalent free voting procedures". The learned counsel would also rely upon the instrument called Inter-American Convention, in which the principles of the Secret Ballot System, as free expression of the will of voter have been accepted. F Mr. Sachar pointed out that the above mentioned expressions were added in Article 25 (b) of ICCPR in the wake of one view of participatory • countries in the Third Committee, 16th Session ( 1961) to the effect: -

" ..... Others held that 'genuine periodic elections', 'universal and equal G suffrage' and 'secret ballot' were the elements of genuine elections, which in tum guaranteed the free expression of the will of the electors (A/C.3/SR.1096, $ 36 (CL), $55(CHI), $63 & $75-76 (UAR), $66 (RL)]. These elements should therefore remain grouped together."

The learned counsel was at pains to argue· that the international H

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

A instructions can be used for interpreting the municipal laws and in support of '

his plea he would repeatedly refer to His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kera/a & Anr., [1973) 4 SCC 225; Jolly George Varghese & Anr. v. The Bank of Cochin, [1980] 2 SCC 360; People's Union for Civil Liberties (PUCL) v. Union of India & Anr., [1997) I SCC 301; Ni/abati Behera v. State ofOrissa & Ors., [1993] 2 SCC 746; Kapila Hingorani B v. State of Bihar, [2003) 6 SCC I and State of W.B. v. Kesoram Industries Ltd. & Ors., [2004] I0 SCC 20 I.

According to Mr. Sachar, the emphasis in the aforementioned judgments ., is that evolving jurisprudence of human rights is required to be used in c interpreting the Statutes. This argument is in addition to the general argument that in the absence of any law, this Court may lay down guidelines in consonance with the principles laid down in the International Instruments so as to effectuate the Fundamental Rights guaranteed under the Constitution.

There can be no quarrel with the proposition that the International D Covenants and Declarations as adopted by the United Nations have to be respected by all signatory States and the meaning given to them have to be such as would help in effective implementation of the rights declared therein. The applicability of the Universal Declaration of Human Rights and the principles thereof may have to be read, if need be, into the domestic jurisprudence. E It was said as early as in Kesavananda Bharati v. State of Kera/a (supra) that "in view of Article 51 of the directive principles, this Court must interpret language of the Constitution, if not intractable, which is after all a municipal law, in the light of the United Nations Charter and solemn declaration subscribed to by India." F But then, the law on the subject as settled in India is clear enough as to render it not necessary for this Court to look elsewhere to deal with the issues that have been raised here. Further, in case of conflict, the municipal • laws have to prevail. G Secrecy o/ Vote-requisite for free and fair election

The }earned Counsel for the petitioners have submitted that the secrecy of voting has always been the hallmark of the concept of free and fair election, so very essential in the democratic principles adopted as our polity. They H submit that this is the spirit of our constitutional law and also universally

KULDIPNAYAR v. U.0.1. [SABHARWAL, CJ.] 149 accepted norm and that any departure in this respect impinges on the fundamental rights, in particular freedom of expression by the voter.

Reference has been made to the case of S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, [1980] Supp SCC 53, in which appeal the core problem concerned the issue as to whether "Purity of election and secrecy of ballot, two central pillars supporting the edifice of parliamentary .democracy envisioned in the Constitution" stand in confrontation with each other or are complementary to each other.

The case of S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra (supra) pertained to the period anterior to the impugned amendment. As noticed earlier, Section 94 of the RP Act, 1951, as it then stood, made provision for ensuring that "Secrecy of voting" is not infringed in any election. In order to do this, the provision would make every witness or other person immune from being "required to state for whom he has voted at an election."

This Court found in the aforementioned case that Section 94 could not be interpreted or examined in isolation and that its scope. ambit and underlying object must be ascertained in the context of the Act in which it finds its place viz. the RP Act, 1951 and further in the context of the fact that this Act itself was enacted in exercise of power conferred by the Articles in Part XV titled

- "Elections" in the Constitution. It was the view of this Court that "Any interpretation of Section 94 must essentially subserve the purpose for which it is enacted. The interpretative process must advance the basic postulate of E

free ~nd fair election for setting up democratic institution and not retard it. Section 94 cannot be interpreted divorced from the constitutional values enshrined in the Constitution". F This Court ruled thus: -

"13. Secrecy of ballot undoubtedly is an indispensable aqjunct offi'ee and fair elections. A voter had to be statutorily assured that he woitld not be compelled to disclose by any authority as to for whom he voted so that a voter niay vote without fear or favour and is free fi'om G arry apprehension of its disclosure against his will from his own lips . .. As Section 94 carves out an exception to Section 132 of the Evidence Act as also to Section 95 of the Act it was necessary to provide for protection of the witness if he is compelled to answer a question which may tend to incriminate him. Section 95 provides for grant of H • a certificate of indemnity in the circumstances therein set out. A

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

A conspectu~ of the relevant provisions of the Evidence Act and Sections 93, 94 and 95 of the Act would affirmatively show that they provide for a procedure. including the procedure for examination of witnesses, their rights and obligations in the trial of an election petition. The expression "witness" used in the section is a pointer and further expression "other person" extends the protection to a forum outside courts .....

(emphasis supplied)

After taking note of, amongst other provisions, Sections 94 and I28 of the RP Act, 195I and the Rules 23(3), 23(5)(a) and (b), 3I(2), 38(4), 39(1), (5), (6) and (8), second proviso to 40(1), 38-A (4), 39-A (I) and (2) as contained in the Conduct of Election Rules, I96 I ("Rules" for short) and similar other rules, this Court found that while seeking to provide for maintaining secrecy of ballot, they were meant "to relieve a person from a situation where he may be obliged to divulge for whom he has voted under testimonial compulsion". It was then observed in Paragraph 14 that: -

" ....Secrecy of ballot can be appropriately styled as a postulate of constitutional democracy. It enshrines a vital principle of parliamentary institutions set up under the Constitution. It subserves a very vital public interest in that an elector or a voter should be absolutely free in exercise of his franchise untrammelled by any constraint which includes constraint as to the disclosure. A remote or distinct possibility - that at some point a voter may under a compulsion of law be forced to disclose for whom he has voted would act as a positive constraint and check on his freedom to exercise his franchise in the manner he freely chooses to exercise. Therefore, it can be said with confidence that this postulate of constitutional democracy rests on public policy."

(emphasis supplied)

It was thus held that secrecy of ballot, a basic postulate of constitutional democracy, was "formulated not in any abstract situation or to be put on a pedestal and worshipped but for achieving another vital principle sustaining constitutional democracy viz. free and fair election".

This Court found that Section 94 was meant as a privilege of the voter to protect him against being compelled to divulge information as to for which candidate he had voted. Nothing prevents the voter if he chooses to open his

- KULDIPNAYAR v. U.0.1. [SABHARWAL, C.I.] 151 lips of his own free will without direct or indirect compulsion and waive the privilege. It was noticed that the provision refers to a "witness or other person". Thus, it is meant to protect the voter both in the court when a person is styled as a witness and outside the court when he may be questioned about how he voted. It was found that no provision existed as could expose the voter to any penalty if he voluntarily chooses to disclose how he voted or for whom he voted. '· With a very clear view that 'Secrecy of ballot' as provided in Section 94 was mooted "to ensure free and fair elections", the Court opined thus: -

".... If secrecy of ballot instead of ensuring free and fair elections is used, as is done in this case, to defeat the very public purpose for which it is enacted, to suppress a wrong coming to light and to protect a fraud on the election process or even to defend a crime viz. forgery of ballot papers, this principle of secrecy of ballot will have to yield to the larger principle of fi'ee and fair elections...... "

(emphasis supplied) D

The Cot1rt, after noticing that the RP Act, 1951 is a self-contained Code on the subjeet :()f elections and reiterating that "there is one fundamental principle which perme,a!es through all democratically elected parliamentary institutions viz. to set t!iem up by free and fair election", observed: E ".... The principle of secrecy of ballot cannot stand aloof or in isolation · ,, apd in confrontation to the foundation of free and fair elections viz. purity of election. They can co-exist but as stated earlier, where one is used to destroy the other, the first one must yield to principle of "purit{/of election in larger public interest. In fact secrecy of ballot, F a privilege of the voter, is not inviola,b{e and may be waived by him as a responsible citizen of this country°to ensure free and fair election . '1' and to unravel foul play." ·

(emphasis supplied) G In formulating its views, support was found in certain observations of Kelly, C.B., in Queen v. Beardsall, [LR (1875-76) 1 QB 452], to the following effect: -

"The legislature has no doubt provided that secrecy shall be preserved "'I H

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

A with respect to ballot papers and all documents connected .with what is now made a secret mode of election. But this secrecy is subject to a condition essential to the due administration of justice and the prevention offraud, forgery, and other illegal acts affecting the purity and legality of elections".

B (emphasis supplied)

Rejecting the apprehension that the principle of secrecy enshrined in Section 94 of the RP Act, 1951, cannot be waived because it was enacted in public interest and it being a prohibition based on public policy, and while agreeing with the contention that where a prohibition enacted is founded on public policy courts should be slow to apply the doctrine of waiver, it was held that the privilege of secrecy was granted for the benefit of an individual, even if conferred to advance a principle enacted in public interest, it could be waived because the very concept of privilege inheres a right to waive it. The Court thus found it an "inescapable conclusion" that the principle of secrecy in Section 94 enacts a qualified privilege in favour of a voter not to be compelled to disclose but if he chooses to volunteer the information the rule is not violated.

Thus, even under the elections that continue to be based on principle of secrecy of voting, it is for the voter to choose whether he wishes to disclose for whom he had voted or would like to keep the secrecy intact. If he so chooses, he can give up his privilege and in that event, the secrecy of ballot should yield. Such an event can also happen if there is fraud, forgery or other illegal act and the disclosure sub-serves the purpose of administration of justice.

F The contention of the learned Counsel for the petitioners is that what is significant is that when a voter is casting his vote he should be able to do so according to his own conscience, without any fear, pressure, or coercion. The fear that under any law, he maybe compelled to disclose for whom he had voted can also not interdict his choice. Assurance of such freedom is an G essence of secrecy of ballot and constitutes an adjunct of free and fair election. Liberty of the voter to choose to disclose his ballot because of fraud or forgery is only for achieving the very same purpose of free and fair election. This liberty, however, does not affect, according to the petitioners, in any way the general principle that secrecy of ballot forms a basis of free and fair election, which is necessary for survival of democracy. H

KULD!PNAYAR v. U.0.1. [SABHARWALC.I.] 153 Mr. Sachar also pressed in aid the decision in Charles W. Burson v. A Mm:v Rebecca Freeman: ( 1992) 119 L.ed. 2d 5 = 504 US 119, wherein it was held that: -

"Right to vote freely for the candidate of one's choice 1s of the essence of a democratic society." B "No right is more precious in a free country than that of having a choice in the election of those who make the laws under which, as good citizens, they must live. Other rights, even the most basic, are illusory if the right to vote is undermined".

In the above-mentioned case, aft€11" dealing with the evil associated with C 'viva voce system' and the failure of law to secure secrecy which had opened the door to bribery it was summed up as follows:

"In sum, an examination of the history of election regulation in this country reveals a persistent battle against two evils; voter intimidation and election fraud. After an unsuccessful experiment with an unofficial ballot system, all 50 States, together with numerous other Western democracies, settled on the same solution: a secret ballot secured in part by a restricted zone around the voting compartments."

- "Finally, the dissent argues that we confuse history with necessity. Yet the dissent concedes that a secret ballot was necessary to cure electoral abuses. Contrary to the dissent's contention, the link between ballot secrecy and some restricted zone surrounding the voting area is not merely timing-it is common sense. The only way to preserve the secrecy of the ballot is to limit access to the area around the voter. Accordingly, we hold that some restricted zone around the voting area is necessary to secure the State's compelling interest."

Mr. PP Rao, learned senior advocate, in submitting that voting being a form of expression and a secret ballot ensures freedom of vote, relied upon observations in Paragraph 2 of the judgment in Lily Thomas v. Speaker, Lok Sabha & Ors., (1993) 4 sec 234, wherein the Court was taking note of the process under Article 124(4) for removal of a Judge of the Supreme Court. It may be mentioned here that the proceedings in the nature envisaged under Article 124 (4) were held earlier in Sub-Committee on Judicial Accountability v. Union of India, (1991] 4 SCC 699, not to be proceedings in the Houses of Parliament and rather one that would partake of judicial character because H

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

A it is removal after inquiry and investigation.

Mr. Rao quoted the following passage from Paragraph 2 of the Judgment in aforementioned case: -

"The statutory process appears to start when the Speaker exercises .. (

B duty under the Judges Enquiry Act and comes to an end once the Committee appointed by the Speaker submits the report. The debate on the Motion thereafter in the Parliament, the discussion and the voting appear more to be political in nature. Voting is formal expression

of will or opinion by the person entitled to exercise the right on the subject or issue in question. In Black's Law Dictionary it is explained c as, "the expression of one's will, p,reference, or choice, formally manifested by a member of a legislative or deliberative body, or of a constituency or a body of qualified electors, in regard to the decision to be made by the body as a whole upon any proposed measure or proceeding or in passing laws, rules or regulations, or the selection D of an officer or representative". Right to vote means right to exercise the right in favour of or against the motion or resolution. Such a right implies right to remain neutral as well..... "

(emphasis supplied)

E Mr. Sachar, while submitting that the sanctity and purity of election where voter casts his choice without any fear and favour can be ensured only if it is by secret ballot, argued that it is secret ballot, which is the bedrock of free and fair election. There cannot be any distinction between a vote cast in the election for House of the People and a vote cast in the Council of States. He submitted that there couldn't also be a distinction between direct F elections like that for the popular House, at the Centre or in the State and an indirect election like that for the office of the President of India or, closer to the subject, election to fill the seats of "the representatives of the States" in the Council of States. . G In above context, he would cite the following passage from SR. Chaudhuri v. State of Punjab & Ors., (2001] 7 SCC 126:-

"34. The very concept of responsible government and representative democracy signifies government by the people. ln constitutional terms, it denotes that the sovereign power which resides in the people is exercised on their behalf by their chosen representatives and for

KULDlPNAYAR v. U.O.L [SABHARWALCJ.] 155

exercise of those powers, the representatives are necessarily accountable to the people for what they do. The members of the if/ r

Legislature, thus, must owe the'ir power directly or indirectly to the people. The members of the State Assemblies like the Lok Sabha trace their power directly as elected by the people while the members of the Council of State like the Rajya Sabha owe it to the people indirectly since they are chosen.by the representatives of the people. The Council of Ministers of which the Chief Minister is the head in the State and on whose aid and advice the Governor has to act, must, therefore, owe their power to the people, directly or indirectly."

It is the submission of Mr. Sachar that the reason used to justify the amendment is fallacious since it assumes as if secrecy of voting is only a routine matter of procedure and that it would. also mean that Parliament could •• • '·.- '. !

. in future pr.ovide that election to the House of the People would be by open , b,~1lot be/;'~~e 1 ,~here is no such provision for secrecy mentioned in the ,ForistitutiJ$i!Ji\~.~ubmission is that secrecy of ballot is an integral part of a democratit'.;Set up· arid its absence means absence of free and fair election. D i.ln A. Neelalohithadasan Nadar v. George Mascrene & ·Ors., [1994] Supp 2 SCC 619, the conflict was found to be between two principles of election law-one beihg "purity of elections" and the other "secrecy of ballot". On the basi~.of the former, the Kerala High Court had upset the election of the appellant »ih~/later came before this Court. Challenge to the order of the E High Court was on the anvil of the latter principle.