KULDIP NAYAR v. UNION OF INDIA AND ORS.

E (b) record his vote in accordance with sub-rule (2) of rule 37- A, with the article supplied for the purpose;

(c) fold the ballot paper so as to conceal his vote;

(c) if required, show to the Presiding Officer, the distinguished mark on the ballot paper; F (e) insert the folded paper into the ballot box, and

(f) quit the po!ling station.

(3) every elector shall vote without undue delay. G (4) No elector shall be allowed to enter a voting compartment when another elector is inside it.

(5) If an elector to whom a ballot paper has been issued, refuses, after warning given by the Presiding Officer to observe the procedure as laid down in sub-rule (2), the ballot paper issued to him shall, whether H

KULDIPNAYAR v. U.0.1. [SABHARWAL, CJ.) 161

he has recorded his vote thereon or not, be taken back from him by A the Presiding Officer or a polling officer LHJder the direction of the Presiding Officer.

(6) After the ballot paper has been taken back, the Presiding Officer shall record on its back the words "Cancelled : voting procedure violated" and put his signature below those words. B (7) All the ballot papers on which the words "Cancelled : voting procedure violated" are recorded, shall be kept in a separate cover which shall bear on its face the words "Ballot papers :voting procedure violated".

(8) Without prejudice to any other penalty to which an elector, from c whom a ballot paper has been taken back under sub-rule (5), may be liable, vote, if any, recorded on such ballot paper shall not be counted."

Rule 39-AA applied to such elections by virtue of Rule 70 reads as under: - D "Information regarding casting of votes. - (I) Notwithstanding. anything contained in Rule 39-A, the presiding officer shall, between the period when an elector being a member of a political party records his vote on a ballot paper and before such elector inserts that ballot paper into the ballot box, allow the authorized agent of that political party to verify as to whom such elector has cast his vote:

Provided that if such elector refuses to show his marked ballot paper to the authorized agent of his political party, the ballot paper issued to him shall be taken back by the presiding officer or a polling officer under the direction of the presiding officer and the ballot paper so taken back shall then be further dealt with in the manner specified in sub-rules (6) to (8) of Rule 39-A as if such ballot paper had been taken back under sub-rule (5) of that rule.

(2) Every political party, whose member as an elector casts a vote at a polling station, shall, for purposes of sub-rule (I), appoint, in Form G 22-A, two authorized agents.

(3) An authorized agent appointed under sub-rule (2) shall be present throughout the polling hours at the polling station and the other shall relieve him ~hen he goes out of the polling station or vice versa." H

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A Since Rule 39-AA is required to be read with Rule 39-A, the former is necessarily an exception to the general rule in all other elections conducted under the RP Act, 1951 by the Election Commission. The norm has been, prior to the impugned amendment, that the voting shall be by a secret ballot, in which all concerned, including the electors are expected to preserve the sanctity of the vote by keeping it secret. But as already observed, the privilege to keep the vote secret is that of the elector who may choose otherwise; that is to say, he may opt to disclose the manner in which he has cast his vote but he cannot be compelled to disclose the manner in which he has done so, except in accordance with the law on the subject which ordinarily comes into play only in case the election is challenged by way of election petition before the High Court. In the case of election to the Council of States, in the post amendment scenario, the norm has undergone a change, in that the political party to which a particular member of the Legislative Assembly of the State belongs is entitled to ascertain through formally appointed auth9rized agent deputed at the polling station the manner in which the member in question, who is an elector for such purposes, has exercised his franchise. The exception applies only to such members of the Legislative Assembly, as are members of a political party and not to all members across the board. The voter at such an election may refuse to show his.vote to the authorized agent of his political party, but in such an event he forfeits his right to vote, which is cancelled by the Presiding Officer of the poling station on account of violation of the election procedure. The effect of the amended Rul'!s, thus, is that in elections to the Council of States, before the elector inserts the ballot paper into the ballot box, the authorized agent of the political party shall be allowed to verify as to whom such an elector casts his vote. In case such an elector refuses to show his marked ballot paper, the same shall be taKen back and will be cancelled by the Presiding Officer on the ground that the voting procedure had been violated. There is, therefore, a compulsion on the voter to show his vote.

But then, the above rules are only in furtherance of the object sought to be achieved by the impugned amendment. Rather, the rules show, the open ballot system put in ~osition does not mean 0pen to one and all. It is only the authori!ed agent of the political party who is allowed to see and verify as to whom such an elector casts his vote. The prerogative remains with the voter to choose as to whether or not to show his vote to the authorized agent of his party. H

KULDIPNA YAR v. U.0.1. {SABHARWAL CJ.] 163 Voting at elections to the Council of States cannot be compared with A a general election. In a general election, the electors have to vote in a secret manner without fear that their votes would be disclosed to anyone or would result in victimization. There is no party affiliation and hence the choice is entirely with the voter. This is not the case when elections are held to the Council of States as the electors are elected members of the legislative assemblies who in turn have party affiliations. B

The electoral systems world over contemplate vanat1ons. No one yardstick can be applied to an electoral system. The question whether election is direct or indirect and for which house members are to be chosen is a relevant aspect. All over the world in democracies, members of the House of C Representatives are chosen directly by popular vote. Secrecy there is a must and insisted upon; in representative democracy, particularly to upper chamber, indirect means of election adopted on party lines is well accepted practice.

In "Australian Constitutional law" [2nd Edition) by Fajgenbaum and Hanks, it is stated at page 51, that: D "Section 24 of the Australian Constitution embodies three principles, i.e., representative democracy, direct popular election and character of the House of representative democracy predicates enfranchisement of the electors, the existence of an electoral system capable of giving effect to the selection of their representatives and bestowal of legislative functions upon representatives selected. The extent of franchise comes under the heading "enfranchisement of electors". The electoral system with innumerable details including voting methods and qualifications of representatives as well as proportiQnal representation in different forms etc. are maters in which there cannot exist a set formula said to be consistent with the representative democracy. The wide range of legislative functions which a legislature may possess must be given due weightage in such matters. Representative democracy covers an entire spectrum of political institutions, each differing in countless respects. However, at no point of time within such spectrum does there exist a single requirement so essential so as to be determinative of the existence of Representative Democracy. Section 24 of the Australian Constitution provides for· direct choice of members by the people. The existence of variations in the number of persons or voters in the electoral division within a St.ate does not detract from the description of the House of H

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

A Representatives or the Senate or the existing electoral system. Proportionality is an element of "choosing of members" whereas qualification is different from the concept of 'choosing of members'. Section 30 of the Australian Constitution refers to qualifications of electors. Section 24 of the Australian Constitution deals with choosing of members in which there is an element of proportionality. B Proportional representation is the system of voting." (emphasis supplied)

Sections 8, 24, 30 and 128 of the Australian Constitution are as under:

"8. The qualification of electors of senators shall be in each State that c which is prescribed by the Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives but in the choosing of senators each elector shall vote only once.

24Copy pinpoint24. The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.

The number of members chosen in the several States shall be in proportion to the respective numbers of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner:-

(i) A quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of the senators; F (ii) The number of members to be chosen in each State shall be determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one-half of the quota, once more member shall be chosen in the State. G But notwithstanding anything in this section, five members at least shall be chosen in each Original State.

30. Until the Parliament otherwise provides, the qualifications of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification H

KULDIPNAYAR v. U.0.1. [SABHARWAL, CJ.] 165

of electors of the more numerous House of Parliament of the State; A but in the choosing of members each elector shall vote only once.

128. This Constitution shall not be altered except in the following manner:

The proposed law for the alteration thereof must be passed by an B absolute majority of each House of the Parliament, and not less than two, nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.

But if either House passes any such proposed law by an absolute c majority, and the other House rejects or fails to pass it or passes it with any amendments to which the first-mentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives.

When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives p becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails.

And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting G also approve the proposed law, it shall be presented to the Governor- General for the Queen's Assent.

No alternation diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representative, in H

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

A increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.

In this section, 'Territory'' means any territory referred to in section B one hundred and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives."

Section 24 is quite similar to Artiele 80(4) and Section 30 to Article 84 of our Constitution. c In the case of Judd v. Mckeon, reported in (1926) 38 CLR 380 at page 385, it is stated as follows:

"The extent of franchise in a democracy is a matter of fundamental importance. The purpose behind section 24 of the Australian D Constitution is to ensure that the members of the Senate are chosen directly by popular vote and not by indirect means, such as, by the parliament or the legislative assembly or by the executive or by an electoral college. Section 24 of the Australian Constitution says that the members of the Senate shall be chosen by the people, which E means, by people qualified to vote." (emphasis supplied)

In the case of King v. James, reported in (1972) 128 CLR 221 at page 229, it has been held as follows:

"The fact that the world 'people' is used in section 24 o_fthe Australian Constitution in contra-distinction to the word "elector" in Sections 8,. F 30 and 128 shows that the framers of the Constitution drafted Section 24 with the idea of providing in that section the manner of choosing rather than emphasizing the people who were to choose." (emphasis supplied)

G In indirect election, when law provides for open ballot system; to decide whether it amounts to a denial to vote or it ensures party discipline, useful reference can be made to the judgment of Supreme Court of South Africa in the case of New National Party a/South Africa v. Government of the Republic of South Africa & Anr., reported in 1999 (3) SA 19 I, head note whereof reads as under: H

KULDIP NAY AR v. U.0.1. [SABHARW AL, CJ.] 167

"Held (per Yacoob J; Chaskalson P. Langa DP, Ackermann J, A Goldstone J, Madala J. Mokgoro J and Sachs J Concurring) that the right to vote was indispensable lo, and empty without, the right to free and fair elections; the latter gave content and meaning to the former. The right to free and fair elections underlined the importance of the exercise of the right to vote and the requirement that every election should be fair had implications for the way in which the right to vote could be given more substantive content and legitimately exercised. Two of these implications were material for the present case: each citizen entitled to do so must note vote more than once in any election and any person not entitled to vote must not be permitted to do so. The extent to which these deviations occurred would have an impact on the fairness of the election. This meant that the regulation of the exercise of the right to vote was necessary so that these deviations could be eliminated or restricted in orde;· to ensure proper implementation of the right to vote. (Paragraph (12) at 201A/B-D) Held, further (per Yacoob J; Chaskalson P, Langa DP, Ackermann J, Goldstone J, Madala J, Mokgoro J and Sachs J concurring; O'Regan D J dissenting), that the right to vote contemplated by section 19(3) of the Constitution was therefore a right to vote in free and fair elections in terms of an electoral system prescribed by national legislation which complied with the requirements laid down by the Constitution. The details of the system were left to Parliament. The national legislation which prescribed the electoral system was the Electoral Act. (Paragraph (14) at 202C/D-D/E)"

(emphasis supplied)

It shows that the right to vote in 'free and fair elections' is always in terms of an electoral system prescribed by national legislation. The right to vote derives its colour from the right to 'free and fair elections'; that the right to vote is empty without the right to 'free and fair elections'. It is the concept of 'free and fair elections' in terms of an electoral system which provides content and meaning to the 'right to vote'. In other words, 'right to vote' is not an ingredient of the free and fair elections. It is essential but not the necessary ingredient.

In the aforesaid case, the dispute was whether the Electoral Act could prescribe only one specific means as proof of enrolment on the voters roll for voting. Under Electoral Act, I.D. card was prescribed as the only proof of H

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

A enrolment on the voters roll. This was. challenged. Rejecting the objection, the Constitutional Court through Yacoob, J, on behalf of the majority held:

[I OJ The aspect of the Electoral Act in issue regulate the way in which citizens must register and vote. The question which must be answered is whether these requirements constitute an infringement of B the right to vote. This can only properly be done in the context of an analysis of the nature, ambit and importance of the right in question, the effect and importance of other related constitutional rights, the inter-relationship of all these rights, the importance of the need for an effective exercise of the right to vote and the degree of regulation required to facilitate the effective exercise of the right. c [I I] The Constitution effectively confers the right to vote for legislative bodies at all levels of government only on those South African citizens who are 18 years or older. It must be emphasized at this stage that the right to vote is not available to everyone in South Africa D irrespective of age or citizenship. The importance of the right to vote is self-evident and can never be overstated. There is however no point in belabouring its importance and it is sufficient to say that the right is fundamental to a democracy for without it there can be no democracy. But the mere existence of the right to vote without proper arrangements for its effective exercise does nothing/or a democracy; it is both empty and useless.

[12] The Constitution takes an important step in the recognition of the importance of the right to exercise the vote by providing that all South African citizens have the right to free, fair and regular elections. It is to be noted that all South African citizens irrespective of their age have a right to these elections. The right to vote is of course indispensable to, and empty without, the right to free and fair elections; the latter gives content and meaning to the former. The right to free and fair elections underlines the importance of the exercise of the right to vote and the requirem1mt that every election should be fair has implications for the way in which the right to vote can be given more substantive content and legitimately exercised. Two of the5e implications are material for this case: each citizen entitled to do so must note vote more than once in any election; any person not entitled to vote must not be permitted to do so. The extent to which these deviations occur will have an impact on the fairness of the election. H This means that the regulation of the exercise of the right to vote is

- KULDIPNAYAR v. U.0.1. [SABHARWAL. C.I.] 169

necessary so that these deviations can be eliminated or restricted in order to ensure the proper implementation of the right to vote. A

(13] The Constitution recognizes that it is necessary to regulate the exercise of the right to vote so as to give substantive content to the right. Section 1(d) contemplates the existence of a national common voters roll. Sections 46(1), 105(1), and 157(5) of the Constitution all B make significant provisions relevant to the regulation of the exercise of the right to vote. Their effect is the following:

(a) National, provincial and municipal elections must be held in terms of an electoral system which must be prescribed by national legislation.

(b) The electoral system must, in general, result in proportional c representation.

(c) Elections for the national assembly must be based on the national common voters roll.

(d) Elections for provincial legislatures and municipal councils must be based on the province's segment and the municipality's segment of the national common voters roll respectively.

The existence of, and the proper functioning of a voters roll, is therefore a constitutional requirement integral both to the elections mandated by the Constitution and to the right to vote in any of them.

(15] The requirement that only those persons whose names appear on the national voters roll may vote, renders the requirement that South African citizens must register before they· can exercise their vote, a constitutional imperative. It is a constitutional requirement of the right to vote, and not a limitation of the right.

(16] The process of registration and voting needs to be managed and regulated in order to ensure that the elections are free and fair. The creation of a Commission to manage the elections is a further essential though, not sufficient ingredient in this process. In order to understand the enormity of the problem, one has just to picture the specter of millions of South Africans arriving at registration points or voting stations armed with all manner of evidence and that they are entitled to register or to vote, only to have the registration or electoral officer sift through this evidence in order to determine whether or not ' ' H

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

A each of such persons is entitled to register or to vote. It is to avoid this difficulty that the Electoral Act makes detailed provisions concerning registration, voting and related matters including the way in which voters are to identijj: themselves in order to register on the common votecs roll and to vote.

B [17] The detailed provisions of the Electoral Act serve the important purpose of ensuring that those who qualify for the vote can register as voters, that the names of these persons are placed on a national common voters roll, and that each such person exercises the right to vote only once. Some form of easy and reliable identification is necessary to facilitate this process. It is in this context that the c statutory provision for the production of certain identity documents must be located. The absence of such a provision could render the exercise of the right to vote nugatory and have grave implications for the fairness of the elections. The legislature is therefore obliged to make such a provision. D The nature of the enquiry

[ 18] The appellant did not dispute that proof of identity and citizenship for registration, and proof of enrolment on the voters roll for voting, are necessary components of the electoral system contemplated by the Constitution. What was disputed was whether the Electoral Act could prescribe that the only means for such proof was a bar-coded ID or TRC for registering and a bar-coded ID or TIC for voting. The submissions on behalf of the appellant were advanced at two levels. In the first place, it was contended that the relevant provisions on their face and evaluated in relation to the constitutional right to vote infringe this right. The question of the facial inconsistency of the impugned provisions with the right to vote and the right to free and fair elections as encapsulated in the Constitution must be addressed both in relation to the rationality of the provision and to whether it infringes the right. Although it was specifically mentioned in response to questions by a member of the Court that the appellant relied on facial inconsistency, no substantial argument was advanced in support of such a contention. Secondly, the argument was that the consequences of the documentary requirements constituted a denial of the right to vote to millions a/South African citizens who were not in possession of the bar-coded ID. Many of these persons (millions of people), so it was argued, would not be able to vote for a variety

KULDIPNAYAR v. U.0.1. [SABHARWAL, CJ.] 171 of inter-related reasons. The submissions were that the Department of A Home Affairs (the department), charged with the responsibility of issuing these documents, did not have the capacity to produce them timeously, that the cost of acquiring the documents constituted a real impediment and that potential voters were not aware, or had not been made sufficiently aware, of the documentary requirements to enable B them to apply for the documents in time. It was contended in this context that South African citizens who were in possession of identity documents issued pursuant to legislation which was operative_ before the 1986 Act came into force ought to have been allowed to use them.

(19] /t is to be emphasized that it is for Parliament to determine c the means by which voters must identify themselves. This is not the function of a court. But this does not mean that Parliament is at large in determining the way in which the electoral scheme is to be structured. There are important safeguards aimed at ensuring appropriate protection for citizens who desire to exercise this foundational right. The first of the constitutional constraints placed upon Parliament is that there must be a rational relationship between the scheme which it adopts and the achievement of a legitimate governmental purpose. Parliament cannot act capriciously or arbitrarily. The absence of such a rational connection will result in the measure being unconstitutional. An objector who challenges the electoral scheme on these grounds bears the onus of establishing the absence of a legitimate government purpose, or the absence of a rational relationship between the measure and that purpose.

(20] A second constraint is that the electoral scheme must not infringe any of the fundamental rights enshrined in chapter 2 of the Constitution. The onus is once again on the party who alleges an infringement of the right to establish it. The contention in this appeal is that the impugned provisions of the Electoral Act constitute a denial of the right to vote to a substantial number of South African citizens. Any scheme designed to facilitate the exercise of this right carries wi(h it the possibility that some people will not comply with its provisions. But that does not make the scheme unconstitutional. The decisive question which arises for consideration in this case is the following: when can it legitimately be said that a legislative measure designed to enable people to vote in fact results in a denial of that H

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A right 9 What a party alleging that an Act of Parliament has infringed the right to vote is required to establish in order to succeed will emerge in the pr:icess of answering this question.

(21] The exercise to be carried out by a court entails an evaluation of the consequences of a statutory provision in the process of its B implementation which occurs at some time in the future. It is necessary, at the outset of the enquiry, to determine the nature of the consequence that is impermissible. The consequence that will be impermissible in the present case can best be determined by focusing on the question as to what Parliament must achieve. Parliament must ensure that people who would otherwise be eligible to vote are able to do so if they want c to vote and if they take reasonable steps in pursuit of the right to vote. More cannot be expected of Parliament. It follows that an impermissible consequence will ensue if those who wish to vote and who take reasonable steps in pursuit of the right, are unable to do so.

(22] It is necessary to determine the circumstances that are to be D taken into account in deciding whether the impugned provisions infringe the right to vote. There are two possibilities. A court can make an evaluation in the light of the circumstances pertaining at the time the provisions were enacted, or those which exist at some later date when the constitutionality of the provisions are challenged. This E Court has adopted an objective approach to the issue of the constitutionality of statutory provisions. A pre-existing law becomes invalid to the extent of its inconsistency with the Constitution, the moment the Constitution comes into force. It is irrelevant that this Court may declare it to be inconsistent only several years later. Similarly, a statutory provision which is passed after the constitution comes into operation is invalid to the extent of its inconsistency with the Constitution, the moment the provision is enacted. This is so regardless of the fact that its invalidity is only attacked, or the concrete circumstances that form the basis of the attack only become apparent, long after its enactment. Consistent with this objective approach to statutory invalidity, the circumstances which become apparent at the time when the validity of the provision is considered by a court are not necessarily irrelevant to the question of its consequential invalidity. However, a statute cannot have limping validity, valid one day, invalid the next, depending upon changing circumstances. Its validity must ordinarily be determined as at the date it was passed. Nevertheless, H

KULDIP NAY AR v. U.0.1. [SABHARWAL, CJ.] 173

the implementation of an Act which passes constitutional scrutiny at the time of its enactment, may well give rise to a constitutional complaint, if, as a result of circumstances which become apparent later, its implementation would infringe a constitutional right. In assessing the validity of such a complaint, it becomes necessary to determine whether the proximate cause of the infringement of the right is the statutory provision itself, or whether. the infringement of the. right has been precipitated by some other cause, such as the failure of a governmental agency to fulfill its responsibilities. If it is established that the proximate cause of the infringement, in the light of the circumstances, lies in the statutory provision under consideration, that provision infringes the right. This is not a departure from the objective approach to unconstitutionality. It is merely a recognition of the fact that a constitutional defect in a statutory provision is not always readily apparent at the time of its enactment, but inay only emerge hter when a concrete case presents itself for adjudication. D (23] lt is necessary to apply an objective test in deciding whether the Act of Parliament, which makes provision for the electoral scheme challenged in the present case, is valid. Parliament is obliged to provide for the machinery, mechanism or process that is reasonably capable of achieving the goal of ensuring that all persons who want to vote, and who take reasonable steps in pursuit of that right, are able to do so. I conclude, therefore, that the Act would infringe the right to vote if it is shown that, as at the date of the adoption of the measure, its probable consequence would be that those who want to vote would not have been able to do so, even though they acted reasonably in pursuit of the right. Any scheme which is not sufficiently flexible to be reasonably capable of achieving the goal of ensuring that people who want to vote will be able to do so if they act reasonably in pursuit of the right, has the potential of infringing the right. That potential becomes apparent only when a concrete case is brought before a court. The appellant bears the onus of establishing that the machinery or process provided for is not reasonably capable of G ; achieving that purpose. As pointed out in the previous paragraph, it might well happen that the right may be infringed or threatened because a governmental agency does not perform efficiently in the implementation of the statute. This will not mean that the statute is invalid. The remedy for this lies elsewhere. The appellant must fail H

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A if it does not establish that the right is infringed by the impugned provisions in the manner described earlier. This Court held in August and Anr. v. The Electoral Commission and Ors., that all prisoners would have been effectively disenfranchised without constitutional or statutory authority by the system of voting and registration which had been put into place by the Commission. This case is different, however, B because the alleged disenfranchisement is said to arise from the terms of the statute and not from the acts or omissions of the agency charged with implementing the statute.

[24) O' Regan J in her dissenting judgment measures the importance of the purpose of the statutory provision in relation to its c effect, and asks the question whether the electoral scheme is reasonable. She goes on to conclude that the scheme is not reasonable, and for that reason, to hold that the relevant provisions of the Electoral Act are inconsistent with the Constitution. In my view this is not the correct approach to the problem. Decisions as to the reasonableness of statutory provisions are ordinarily matters within the exclusive competence of Parliament. This is fundamental to the doctrine of separation ofpowers and to the role of courts in a democratic society. Courts do not review provisions of Acts of Parliament on the grounds that they are unreasonable. They will do so only if they are satisfied that the legislation is not rationally connected to a legitimate government purpose. In such circumstances, review is competent because the legislation is arbitrary. Arbitrariness is inconsistent with the rule oflaw which is a core value of the Constitution. It was within the power of Parliament to determine what scheme should be adopted for the election.· If the legislation defining the scheme is rational, the F Act of Parliament cannot be challenged on the grounds of "unreasonableness". Reasonableness will only become relevant if it is established that the scheme, though rational, has the effect of infringing the right of citizens to vote. The question would then arise whether the limitation is justifiable under the provisions of section 36 of the Constitution, and it is only as part of this section 36 enquiry that G reasonableness becomes relevant. It follows that it is only at that stage of enquiry that the question of reasonableness has to be considered. The first question to be decided, therefore, is whether the scheme prescribed by the Electoral Act is rational.

Rationality of the statutory provisions H

KULDIPNAYAR v. U.O.L[SABHARWAL,CJ.] 175

[25] It is, in my view, convenient. to determine whether the impugned provisions are rationally related to a legitimate governmental purpose in two stages. The first part of the enquiry is whether a facial analysis of the provisions in issue, in relation to the Constitution, has been shown to lack rationality; the second is whether these provisions can be said to be arbitrary or capricious in the light of certain circumstances existing as at the date of the adoption of the statute.

Effect of the relevant circumstances

[28] The facial analysis demonstrates that the statutory provisions asserting the disputed documentary requirements are rationally related to the legitimate governmental purpose of ensuring the effective exercise of the right to vote. I will now examine whether the disputed measures can be said to be arbitrary or capricious in the light of the circumstances which, according to the appellant, were relevant."

It is, therefore, evident that the right to vote is a concept which has to yield to a concept of the attainment offree and fair elections. The nature of elections, namely, direct or indirect, regu !ates the concept of right to vote. Where elections are direct, secret voting is insisted upon. Where elections are indirect and where members are chosen by indirect means, such as, by parliament or by legislative assembly or by executive, then open ballot can ·be introduced as a concept under the electoral system of voting. In the case of direct elections, members are chosen directly by popular vote which is not the case under indirect elections. Therefore, it cannot be said that the concept of open ballot would defeat the attainment of free and fair elections. In the present case, the question of denial of right to vote would be self inflicted only on the member of the Legislative Assembly declining to show his vote to the authorized representative of the party. If a MLA casts a vote in favour of any person he thinks appropriate and shows his vote to the authorized representative of the political party to which he belongs, Rules do not contemplate cancellation of such a vote.

It cannot be forgotten that the existence of political parties is an essential feature of our Parliamentary democracy and that it can be a matter of concern for Parliament if it finds that electors were resorting to cross voting under the garb of conscience voting, flouting party discipline in the name of secrecy of voting. This would weaken the party discipline over the errant Legislators. Political parties are the sine qua non of Parliamentary democracy in our country and the protection of party discipline can be introduced as an essential H

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

A feature of the purity of elections in case of indirect elections.

Parliamentary Democracy and multi party system are an inherent part of the basic structure of Indian Constitution. It is political parties that set up candidates at an election who are predominartly elected as Members of the State Legislatures. The context in which General Elections are held, secrecy B of the vote is necessary in order to maintain the purity of the Election system. Every voter has a right to vote in a free and fair manner and not disclose to any person how he has voted. But here we are concerned with a voter who is elected on the ticket of a political party. In this view, the context entirely changes. c That the concept of 'constituency-based representation' is different from 'proportional representation' has been eloquently brought out in the case of United Democratic Movement v. President of the Republic of South Africa and Ors., reported in (2003) 1 SA 495, where the question before the Supreme Court was: whether 'floor crossing' was fundamental to the Constitution of D South Africa. In this judgment the concept of proportional representation vis-a-vis constituency-based representation is highlighted. The relevant passages from the said judgment read as under:

"24. The first question that has to be considered is the meaning of the phrase "a mu/ti-party system of democratic government'" in the context E of section l(d) of the Constitution. It clearly excludes a one-party state, or a system of government in which a limited number of parties are entitled to compete for office. But is that its only application?

25Copy pinpoint25. The phrase is not a term of Article. We were referred to no c:: authority on political science or the South African Constitution that F . offers a meaning of these words. Nor can any assistance be gleaned from commenta~ies on the South African Constitution. Most authors seem to regard the meaning of the phrase to be self-evident and to require no explanation beyond the words themselves.

26Copy pinpoint26. A multi-party democracy contemplates a political order in which G it is permissible for different political groups to organize, promote their views through public debate and participate in free and fair elections. These activ:ties may be subjected to reasonable regulation compatible with an open and democratic society. Laws which go beyond that, and which undermine multi-party democracy, will be invalid. What has to be decided, therefore, is whether this is the effect H

KULDIPNAYAR v. U.0.1. [SABHARWAL.CJ.] 177

of the disputed legislation. A

27Copy pinpoint27. The applicants contend that the proportional representation system is an integral part of the Constitution, that the purpose of the ante- defection provision is to protect this system and that any interference with these provisions is an interference with the multi-party system of democratic government contemplated by section 1(d) of the B Constitution.

Proportional Representation

28Copy pinpoint28. In support of this contention reliance was placed by the applicants on constitutional principle VIII which was one of the principles with C which the Constitution had to comply. Constitutional principle VIII provides:

"There shall be representative government embracing multi-party democracy, regular elections, universal adult suffrage, a· common voters' roll, and, in general, proportional representation." D

29Copy pinpoint29. Significantly, however, section l(d) of the Constitution incorporates all the provisions of constitutional principle VIII, save for the last requirement that refers to proportional representation. If it had been contemplated that proportional representation should be one of the founding values it is difficult to understand why those words were E omitted from section I(d). Textually, proportional representation is not included in the founding values. Nor, in our view, can it be implied as a requirement of multi-party democracy. There are many systems of multi-party democracy that do not have an electoral system based on proportional representation. F

30Copy pinpoint30. The applicants contend, however, that an anti-defection provision is an essential component of an electoral system based on proportional representation. This, so the contention goes, is necessary to ensure that the results of an election are not affected by the defection of persons who gained their seats in a legislature solely because of their G position on the party list. It is the party, and not the members, which is entitled to the seats, and if a member is allowed to defect, that distorts the proportionality that the system was designed to achieve.

31Copy pinpoint31. There is .a tension between the expectation of voters and the conduct of members elected to represent them. Once elected, members H

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

A of the legislature are free to take decisions, and are not ordinarily liable to be recalled by voters if the decisions taken are contrary to commitments made during the election campaign.

32Copy pinpoint32. It is often said that the freedom of elected representatives to take decisions contrary to the will of the party to which they belong is an B essential element of democracy. Indeed, such an argument was addressed to this Court at the time of the certification proceedings where objection was taken to the transitional ante-defection provision included in Schedule 6 to the Constitution. It was contended that submitting legislators to the authority of their parties was inimical to "accountable, responsive, open, representative and democratic c government; that universally accepted rights and freedoms, such as freedom of expression, freedom of association, the freedom to make political choices and the right to stand for public office and, if elected, to hold office, are undermined; and that the anti-defection clause militates against the principles of 'representative government', D 'appropriate checks and balances to ensure accountability, responsiveness and openness' and 'democratic representation'."

33Copy pinpoint33. This Court rejected that submission holding:

"Under a list system of proportional representation, it is parties that the electorate wtes for, and parties which must be accountable to the electorate. A party which abandons its manifesto in a way not accepted by the electorate would probably lose at the next election. In such a system an anti-defection clause is not inappropriate to ensure that the will of the electorate is honoured. An individual member remains free to follow the dictates of personal conscience. This is not inconsistent with democracy .

.... An ante-defection clause enables a political party to prevent defections of its elected members, thus ensuring that they continue to support the party under whose aegis they were elected. It also prevents parties in power from enticing members of small parties to defect from the party upon whose list they were elected to join the governing party. If this were permitted it could enable the governing party to obtain a special majority which it might not otherwise be able to muster and which is not a reflection of the views of the electorate. This objection cannot be sustained."

34Copy pinpoint34. It does not follow from this, however, that a proportional •

KULDIPNAYAR v. U.0.1. [SABHARWALCJ.] 179

representation system without an ante-defection clause is inconsistent A with democracy. It may be that there is a closer link between voter and party in proportional representation electoral systems than may be the case in constituency-based electoral systems, and that for this reason the argument against defection may be stronger than wou Id be the case in constituency-based elections. But even in constituency- B based elections, there is a close link between party membership and election to a legislalure and a member who defects to another party during the life of a legislature is equally open to the accusation that ne or she has betrayed the voters.

47. The fact that a particular system operates to the disadvantage of particular parties does not mean that it is unconstitutional. For instance, the introduction of a constituency-based system of elections may operate to the prejudice of smaller parties, yet it could hardly be suggested that such a system is inconsistent with democracy. If defection is permissible, the details of the legislation must be left to Parliament, subject always to the provisions not being inconsistent with the Constitution. The mere fact that Parliament decides that a threshold of I0% is necessary for defections from a party, is not in our view inconsistent with the Constitution.

Rule of law E

55. Our Constitution requires legislation to be rationally related to a legitimate government purpose. If not, it is inconsistent with the rule of law and invalid.

68. In the pharmaceuticals Manufacturers case it was pointed out that rationality as a minimum requirement for the exercise of public power,

"does not mean that the courts can or should substitute their opinions as to what is appropriate, for the opinions of those in whom the power has been vested. As long as the purpose sought to be achieved by the exercise of public power is within the authority of the functionary, and as long as the functionary's decision, viewed objectively, is rational, a court cannot interfere with the decision simply becau,se it disagrees with it or considers that the power was exercised inappropriately."

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

A Thi~ applies also and possibly with greater force to the exercise by Parliament of the powers vested in it by the Constitution, including the power to amend the Constitution.

71. The final issue with regard to the founding values and rule of law relates to the filing of vacant seats. Members elected on party lists B are subject to party discipline and are liable to be expelled from their party for breaches of discipline. If that happens they cease to be members of the legislature.

72. Defecting members who form or join another party become subject to that party's discipline and are equally liable to expulsion for c breaches of discipline. Thus, if a defecting member is subsequently expelled from his or her new party, or if a member dies, provision has to be made for how the vacant seats are to be filled.

75. In the result the objection to the four Acts on the grounds that they are inconsistent with the founding values and the Bill of Rights D must fail. That makes it unnecessary to consider whether such provisions can be amended by inference, or whether it is necessary if that be the purpose of an amendment, to draw attention to this in the section 74(5) notices, and to state specifically that the provisions of section 74(1) or 74(2), as•the case may be, are applicable to such amendments." E The distinguishing feature between 'constituency-·based representation'. and 'proportional representation' in a representative democracy is that in the case of the list system proportional representation, members are elected on party lines. They are subject to party discipline. They are liable to be expelled p for breach ofdiscipline. Therefore, to give effect to the concept of proportional representation, Parliament can suggest 'open ballot'. In such a case, it cannot be said that 'free and/air elections.' would stand defeated by 'open ballot'. As stated above, in a constituency-based election it is the people who vote whereas in proportional representation it is the elector who votes. This distinction is indicated also in the Australian judgment in King v. James G (supra). In constituency-based representation, 'secrecy' is the basis whereas in the case of proportional representation in a representative democracy the basis can be 'open ballot' and it would not violate the concept of 'free and fair elections' which concept is one of the pillars of democracy. ·

Further, every vote on a motion inside the House is by an open ballot. H

KULDIP NAY AR v. U.0.1. (SABl-IARWAL. CJ.] 181

The election of a Speaker, Deputy Speaker of the House of the People and A the Deputy Chairperson of the Council of States is by a division which is a system of open ballot. Reference may be made in this respect to Rules 7, 8, 364, 365, 367, 367 A, 367 AA and 367B of Rules of Procedure and the Conduct of Business in the Lok Sabha and Rules 7, 252, 253 and 254 of Rules of Procedure and Conduct of Business in the Council of States. B In above view, the justification of the impugned amendment on the reasoning that open voting eradicates the evil of cross-voting by electors who have been elected to the Assembly of the particular State on the basis of party nomination cannot be lightly brushed aside.

The submission on behalf of the Petitioners fails to take into account the distinction between direct elections and indirect elections. This is not a case of direct election by an individual voter in any particular election. This is a case of indirect election by members of the Legislative Assembly who owe their membership to the Legislative Assembly having been elected by reason of their being sponsored and promoted by the political parties concerned.

The contention that the right of expression of the voter at an election for the Council of States is affected by open ballot is not tenable, as an elected MLA would not face any disqualification from the Membership of the House for voting in a particular manner. He may at the most attract action from the political party to which he belongs. Being a Member of the political party on whose ticket he was elected as an MLA, in the first place, he is generally expected to follow the directions of the party, which is one of the basic political units in our democracy.

Since the amendment has been brought in on the basis of need to avoid cross voting and wipe out evils of corruption as also to maintain the integrity of our democratic set-up, it can also be justified by the State as a reasonable restriction under Article 19(2) of the Constitution, on the assumption that voting in such an election amounts to freedom of expression under Article 19(1)(a) of the Constitution. G Even if we were to cast aside the view taken in N.P. Ponnuswami and proceed on the assumption that right to vote is a constitutional right, expanding the view taken in the case of People's Union for Civil Liberties, there can be no denial of the fact that the manner of voting in the election to the Council of States can definitely be regulated by the Statute. The Constitution does not H

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

A provide that voting for an election to the Council of States shall be by secret ballot. The voting for an election to the Council of States till now was by secret ballot due to a law made by Parliament. It cannot be said that secret ballot in all forms of elections is a Constitutional right.

By the amendment, the right to vote is not taken away. Each elected B Member of the Legislative Assembly of the concerned State is fully entitled to vote in the election to the Council of States. The only change that has come owing to the impugned amendment is that he has to disclose the way he has cast the vote to the representative of his Party. Parliament would justify it as merely a regulatory method to stem corruption and to ensure free C and fair elections and more importantly to maintain purity of elections. This Court has held that secrecy of ballot and purity of elections should normally co-exist. But in the case of the Council of States, the Parliament in its wisdom has deemed it proper that secrecy of ballot should be done away with in such an indirect election, to ensure purity of election.

D The procedure by which an election has to be held should further the object of a free and fair election. It has been not::d by the Parliament that in elections to the Council of States, members elected on behalf of the political parties misuse the secret ballot and cross vote. It was reported that some members indulge in cross voting for consideration. It is the duty of the Parliament to take cognizance of such misbehaviour and misconduct and legislate remedial measures for the same. Breach of Discipline of political parties for collateral and corrupt considerations removes the faith of the people in a multi party democracy. The Parliament, therefore, necessarily legislated to provide for an open ballot. A multi party democracy is a necessary part of the basic structure of the Constitution. An amendment to law intended to restore popular faith in parliamentary democracy and in the multi party system cannot be faulted.

The principle of secrecy is not an absolute principle. The legislative Amendment cannot be struck down on the ground that a different or better view is possible. It is well settled that a challenge to Legislation cannot be decided on the basis of there being another view which may be more reasonable or acceptable. A matter within the legislative competence of the legislature has to be left to the discretion and wisdom of tne latter so long as it does not infringe any Constitutional provision or violate the Fundamental rights.

The secrecy of ballot is a vital principle for ensuring free and fair elections. The higher principle, however, is free and fair elections and purity f

KULDIPNAYAR v. U.0.1.[SABHARWAL,CJ.] 183 of elections. If secrecy becomes a source for corruption then sunlight and transparency have the capacity to remove it. We can only say that Legislation pursuant to a legislative policy that transparency will eliminate the evil that has crept in would hopefully serve the larger object of free and fair elections.

We would like to recall the following views of this Court in Indira Nehru Gandhi v. Raj Narain: - B "672. The contention that "democracy" is an essential feature of the Constitution is unassailable ... .If the democratic fonn of government is the cornerstone of our Constitution, the basic feature is the broad form of democracy that was known to Our Nation when the Constitution was enacted, with such adjustments and modifications as exigencies may demand but not so as to leave the mere husk of a popular rule. Democracy is not a dogmatic doctrine and no one can suggest that a rule is authoritarian because some rights and safeguards available to the people at the inception of its Constitution have been abridged or abrogated or because, as the result of a constitutional amendment, the form of government does not strictly comport with some classical definition of the concept. The needs of the nation may call for severe abnegation, though never the needs of the rulers and evolutionary changes in the fundamental law of the country do not necessarily destroy the basic structure of its government. What does the law live for, if it is dead to living needs? ..... " E (emphasis supplied)

Thus, we do not find merit in any of the contentions raised by the petitioners to question the Constitutional validity of the introduction through the impugned amendment of "open ballot" system of election to fill the seats of the representatives of States in the Council of 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 in 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 of the Legislative Assemblies of the States in accordance with the system of proportional representation by means of a single transferable vote. Apart from this, the Constitution does not put any restriction on the legislative powers of the Parliament in this regard. The amendments in Sections 3, 59, 94 and 128 of H

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

A the Representation of the People Act, 1951 by the Representation of the People (Amendment) Act, 2003 (40 of 2003) has been made in exercise of the powers conferred on the Parliament under Article 246 read with Articles 84 and 327 and Entry 72 of the Union List of the Seventh Schedule to the Constitution.

B The impugned amendment does not infringe any Constitutional provision. It cannot be found to be violative of fundamental right~ in Part Ill of the Constitution. It is not disputed that Parliament has legislative competence to enact the amending Act. Jn these facts and circumstances, the impugned legislation cannot be struck down as unconstitutional. c All the Writ Petitions questioning the Constitutional validity of the amendments brought about in the Representation of People the Act, 1951 through the Representation of the People (Amendment) Act, 2003 (Act No.40 of 2003), being devoid of merits are hereby dismissed. Interim orders stand vacated. All parties are left to bear their own costs.

S.K.S. Writ Petition dismissed.