Holding

The amendments to the Representation of People Act, 1951 are constitutional; Parliament has the power to prescribe qualifications and the manner of election, and residence is not a constitutional requirement for membership of the Council of States.

Summary

The Supreme Court dismissed writ petitions challenging the constitutional validity of the Representation of People (Amendment) Act, 2003, which amended the Representation of People Act, 1951 to remove the requirement of domicile/residence in a State for election to the Council of States (Rajya Sabha) and introduced an open ballot system for such elections. The Court held that residence was never a constitutional requirement for Rajya Sabha membership; it was a statutory qualification that Parliament could amend. The amendment did not violate federalism as it did not change the character of the Council of States, and the basic structure doctrine does not apply to ordinary legislation. The open ballot system was upheld as a reasonable restriction to prevent corruption and cross-voting, and secrecy of ballot is not an absolute principle. The Court also held that the right to vote is not a fundamental right but a statutory right, and the manner of voting can be regulated by Parliament. The amendments were within Parliament's legislative competence under Articles 84, 246, 327 and Entry 72 of the Union List.

Issues considered

Whether deletion of the domicile requirement for election to the Council of States violates the principle of federalism and the basic structure of the Constitution?
Whether the introduction of the open ballot system for elections to the Council of States violates the principle of secrecy of voting and the fundamental right to freedom of expression under Article 19(1)(a)?
Whether the amendments to the Representation of People Act, 1951 are within the legislative competence of Parliament?
Whether the basic structure doctrine applies to ordinary legislation, as opposed to constitutional amendments?

Legislation cited

Constitution of Indias. 19, s. 249, s. 251, s. 324, s. 327, s. 368, s. 379, s. 55, s. 66, s. 80, s. 84
Government of India Act, 1915
Government of India Act, 1919
Government of India Act, 1935
Representation of People Act, 1950s. 13, s. 14, s. 15, s. 17, s. 18, s. 19, s. 20
Representation of People Act, 1951s. 128, s. 3, s. 4, s. 59, s. 94

Subjects

FederalismBasic structureRajya SabhaCouncil of StatesOpen ballotSecrecy of votingDomicileResidenceRepresentation of the People ActElection lawLegislative competenceFree and fair electionsRight to voteArticle 80Article 84Article 327

Judgment

1
KULDIP NAYAR A
v.
UNION OF INDIA AND ORS.

AUGUST 22, 2006

[Y.K. SABHARWAL, CJ., K.G. BALA.KRISHNAN, S.H. KAPADIA, B
C.K. THAKKER AND P.K. BALASUBRAMANY AN, JJ.]
~
Representation of People Act, I950; Ss.I3, I4, I5, I7, I8, I9 & 201
Representation of People Act, 1951; Ss. 3, 59, 94 and I28 with Amendment
Act 40 of 2003/Constitution of India, I950; Articles 19, 55, 66, 80, 249, 25I,
c
324, 327, 368 and 379; Ent1y 72 of the Union List and Tenth Schedule to
the Constitution/Government of India Acts, I915, 1919 and 1935/Rules of
Procedure and the Conduct of Business in the Lok Sabha; Rules 7, 8, 364,
365, 367 and 367A, 367B!Rules of Procedure and Conduct of Business in the
Council of States: Rules 7, 252, 253 and 254: D

~ Election to the Council of States-Eligibility-Requirement of domicile
of the State to be represented-Deletion of by amendment from R.P. Act,
1951-Constitutionality of-Held: The legislative history of the Constitution
reveals that residence has never. been the constitutional requirement for
constitution of the upper House-Residence is an incident of federalism E
which could be regulated by the Parliament as qualification, a subject matter
under Article 84 of the Constitution-Amendment, so made, does not change
the character of the Council of the States as the election remain the law, ihe
elected member remain representatives of the State and the choice and the
decision as to elect the representative would remain with the State
F
Assemblies-It does not affect the role, fi1ture prerogatives of the members of
~ the Council of States especially in the matter of legislation-Only the scope
of consideration for election to the Council of States has been enlarged-
It is passed by the Parliament in its legislative competence, without
transgressing the provisions of Part-Ill of the Constitution or any other
~· provisions of the Constitution, hence not unconstitutional. G
·,~

Amendment in R.P. Act, 1951-Principle of Federalism-Effect of
amendment-Held: Federal Principle dominant in the Constitu'ion and is
one of its basic features but it is not territory related-It is not the requirement
,,,.
~ H
2 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A of such principle that the representative of the States must belong to that
State-It is the electorate who would represent the interest of the State-
Hence, deletion of the requirement of residential qualification by the
Parliament would not amount to violation ofthe basic features offederalism-
Though the provision of residence/domicile existed in the 1951 Act, a Statutory
B Act, but it was not the constitutional requirement, hence its removal there-
from by wizy of the amendment is not unconstitutional and could not be
challenged under the provi~ions of Article 368 of the Constitution.

Role of Members of Council of States in protecting the interest of the
State-Held: They do not vote in the Parliament at the dictate of the State
C concerned, but according to their own views and party affiliation.

Members of Council of States-Qualifications of-Held: The provisions
under Article 243 of the Constitution do not add the requirement of domicile
to the qualification for membership of the Council of States.

State Representatives -Residence as qualification-Held: In the absence
D of express requirement of residence as a qualification, it cannot be read into
Articles 80 and 84 of the Constiflltion.

Power of Parliament in amending R.P. Act, 1951-Held: 1951 Act is
enacted by the Parliament like any other law-Hence, Parliament is
empowered to bring about amendments in it like any other Statute.
E Power of Parliament in changing law relating to election-Held: The
Parliament is empowered to bring in such legislation-Articles 80(4) and
327 of the Constitution.

'Right to vote' and 'free and fair election '-Relation between-Held:
F Right to vote is not an ingredient of the free and fair elections-In fact, right
to vote is a concept which yield to a concept of the attainment offree and
fair election. •
Election to the Council of States-Provisions not allowing outsiders to
contest the election-Removal of-Held: Justified, by allowing the outsider
G to contest the election, the Parliament has in fact widened the choice of the
elections without altering its character.

Right to vote in secrecy-Effect of Proviso added to Sections 59, 94 and
148 of R.P. Act, 1951 providing for open ballot as an exception to the general
rule of secrecy in the election for the Council of the States-Held: It does not
H affect on right to vote of the members as the Constitution itself has provided
KULDIPNA YAR v. U.0.l. 3

for election by secret ballot only where it thought fit to do so-However, ii A
is silent so far as election to the Council of the States is concerned-Though
Election Commission is empowered under Article 324 to act and advice in
such circumstances for the purpose of pursuing the goal of fi"ee and fair
election, but the Parliament is not bound by such advice in ter111s ofprovisions
under Article 327 of the Constitution.
B
Open ballot syste111 in preference to secret ballot syste111-
Disqualification under the tenth schedule of the Constitution-Held: It cannot
~. be said that the open ballot system tends to expose the members of the
Legislative Assembly disqualification under the tenth Schedule since that
part of the Constitution is meant for different purposes. C
Amendment-Introduction of Open Ballot System in lieu a/Secret Ballot
System-Implication and justification of-Held: Open ballot system does not
mean open to one and all-In terms of the amendment, only the authori::ed
agent of the political party is allowed to see the ballot-However, the
prerogative would remain with the voter to choose as to whether or not to D
show it to the awhorized agent, though liable to be cancelled in the event
voter chose not to show it to the agent-fl.foreover, where elections are direct
as in general elections, secret voting could be insisted upon as the voters
have no party affiliation, but in case of indirect election. the open ballot
syste111 can be introduced as it is 111erely a reg1tfato1J' method to stern 011/ E
corruption, to ensure free and fair elections and to maintain purity of
elections-Principle of secrecy is not an absolute principle, the legislative
amendment cannot be struck down on the ground that different or better view
is possible-Though secrecy of ballot is a vital principle for ensuring free and
fair elections, however, ifsecrecy becomes a source ofcorruption the legislature
have the capacity to remove it to serve the larger object of conducting free F
and fair elections.

Right to vote-Open ballot system-Imposing of reasonable restriction
in ter111s of Article 19(2) of the Constitution-Held: Open baffot 11yste111 is in
the interest of maimaining and protecting discipline in the political parties-
It also prevents cross voting-Hence, ii amounts to imposing of reasonable G
restriction in terms of Article 19(2) of the Constitution, but it cannot be
construed that by doing so the right to vote is taken away as each elected
member of the State Assembly would be fi1lly entitled to vote for the Council
of the States subject to the only restriction of disclosing to the representative
of his party, to whom he has cast the vote.
H
4 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A Doctrines:

Doctrine of cuntemporanea expositio-Applicability of-Held: Not
applicable as irrelevant in the facts and circumstances of the case.

Words and Phrases:

B ·candidate' and 'the States '-Nexus between in the context of election
to the Council of States-Discussed.

'Each '-Meaning of in the conlext of Article 80 of the Constitution.

'Ordinarily Resident '-Meaning and nature of in the context of
C Constitutional provisions.
'Ordinmy residence '-Meaning of in the context of qualification for
membership of either Houses of Parliament.

'Representative of the Stale '-Meaning of-Held: The words
'representative of the State' do not in any manner connote that the elector!
D representative must also he an elector /voter registered in the State concerned.

The petitioner has filed writ petitions challenging the amendments made
in the Representation of People Act, 1950, whereby the requirement of
"domicile" for getting elected a person to the Council of States is deleted. He
has challenged it on the ground of violation of the Principle of Federalism,
E basic structure of the Constitution; the petitioner has also challenged the
amendments made in Sections 59, 94 and 128 of the Representation of People
Act, 1951, whereby 'Open Ballet System' in lieu of 'secret voting' is introduced
in the election of members of the Council of States as it violates the principle
of 'secrecy', the essence of free and fair elections as also violating the voter's
F freedom of expression, the basic feature of the Constitution and the subject
matter of the fundamental right under Article 19(1)(a) of the Constitution.

Petitioner contended that the impugned amendment to Section 3 of the
RP Act, 1951 offends the principle of Federalism, the basic feature of the
Constitution; it seeks to change the character of republic which is the
G foundation of our democracy; that it distorts the balance of power between the
Union and the States and is, therefore, violative of the provisions of the
Constitution; that the reasons given in the Statement of Objects imd Reasons
for the Amendment Act do not provide for any rational justification for the
impugned amendment; that the reasons given in affidavit in reply, by Union of
India, to justify the impugned amendment for amending Section 3 are different
H from the reasons given in the Statement of Objects and Reasons for the Bill;
~

KULDlPNA YAR v. U.0.1. 5
that the nomenclature "Council of States" indicates the federal character of A
the House and a representative who is not ordinarily resident and who does
not belong to the State concerned cannot effectively represent the State; that
India has adopted parliamentary system of democracy in which the Union
Legislature is a bi-cameral legislature, that such legislature represents the
will of the people of the State whose cause has to be represented by the
members; that the impugned amendments in the Representation of People Act, B
1951 removes the distinction in the intent and purpose of Lok Sabha and Rajya
Sabha; that the mere fact that there exist numerous instances of infringement
of the law concerning the requirements of residence cannot constitute a valid
object or rational reason for deleting the requirement of residence; that the
Constitution and the Representation of People Acts 1950 and 1951 respectively c
have always been read as forming part of an integral scheme under which a
person ordinarily resident in a constituency is entitled to be registered in
the electoral roll of that constituency; that the scheme guarantees the
representative character of the Council; that by deletion of the word 'domicile'
or 'residence' or by not reading the word 'domicile' or 'residence' in Article
80(4) of the Constitution, the basic requirement of the representative federal D
body stands destroyed; that requirement of domicile is so intrinsic to the
\I
concept of Council of States that its deletion not only negates the constitutional
scheme making the working of the Constitution undemocratic but also violates
the federal principle which is one of the basic features of the Constitution;
that in terms of the amended Sections 3 and 4 of the 1951 Act, one can get E
elected as people's representative in the House of the People for a constituency
in one particular State even though one is an elector registered as such in a
Parliamentary constituency in another State; that by the impugned amendment
in Section 3, the qualification for Membership of the Council of States is
"equated" with that of the House of the People; that the impugned amendment
has destroyed the essential characteristic of the Council of States because a F
person who is an elector, and so an ordinary resident, in any constituency in
-\ India, not necessarily of a particular State can now be chosen to be a
)
representative of such State, only by virtue of being so elected to the Council
of States by the Members of the Legislative Assembly of such State; that the
need for a Second Chamber viz. the Council of States has become redundant,
G
in that it now merely duplicates the House of the People; that as a result of
the impugned amendment, the person elected to the Council of States, if he is
at all "representative" of anyone, he is only a representative of the State
Assembly that elected him and not a "representative" of the State, as he was
required to be under Article 80 of the Constitution; that the law enacted by
1. Parliament had to prescribe some connection between the person standing H
6 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A for election and the State that he is to represent in the Council of States,
which is now missing; that the words "representatives of the States" in Article
80(1 )(b) and (2) and the words "representatives of each State in the Council
of States" in Article 80(4) need to be interpreted in such a manner that it
tends to strengthen the basic structure of the Constitution; that the use of
B the word "each" in Article 80(4), in relation to representation of States in
the Council of States was not without significance, in as much as the stress
is on providing representation to "each State" so as to give to the House the
character of a body representing the States; that Article 80 does require the
person in question to first be a representative of the State before he is elected
by the elected members of the Legislative Assembly of that State; the mere
C fact of election by particular State Assembly of any "elector" in India cannot
render that person as being "qualified" to represent that State; that the
impugned amendment had failed to provide alternative additional qualification,
since any citizen of India, resident anywhere in India, can now be elected by
any State Assembly even when his registration as an elector is, outside that
State; no further additional qualifications are provided to indicate his or her
D usefulness in the debates or discourses to take place in the Council of States;
that by the impugned amendment a 'qualification' has been introduced which
is not a qualification at all, and which only means that anyone in India who is 1

on the electoral roll of any Parliamentary Constituency in India can be chosen
by any State Assembly in India as a representative of that State in the Council
E of States; that by the impugned amendment, Parliament has whilst purporting
to set up "qualification" for membership to the Council of States failed to
have due regard to the expression "representative of the State" in Article
80; that the impugned amendment violates the right of secrecy by resorting
to open ballot system that is nothing but a political move by clique in political
parties for their own achievement; that the impugned amendments violate the
F Fundamental Right under Article 19(l)(a) of the Constitution as well as the
provisions in the Representation of the People Act, 1951, Universal Declaration
of Human Rights and International Covenant on Civil and Political Rights;
that free and fair election is a concept inherent in the democratic values
adopted by our polity; that right to vote in an election under the Constitution
G of India, which includes the election of the representatives of States in the
Council of States, is a Constitutional right, if not a Fundamental right; that
the right to vote be invariably accompanied by the right of secrecy of vote so
as to ensure that the freedom of expression through vote is real; that the fact
that election to fill the seats in the <;:ouncil of States by the legislative
assembly of the State involves 'voting', the principles of Tenth Schedule are
H attracted; that the application of the Tenth Schedule itself shows that open
1

KULDIPNA YAR v. U.0.1. 7

-1 ballot system tends to frustrate the entire election process, as also its sanctity A
and also the provisions of the Constitution and the RP Act; that the open ballot
system, coupled with the looming threat of disqualification under the Tenth
Schedule reduces the election to a political party issuing a whip and the
candidate being elected by a show of strength. This will result in people with
moneybags occupying the seats in the Council of States; that International" B
Instruments put emphasis on "secret ballot" since it lays the foundation for \
ensuring free and fair election which in turn ensures formation of a
democratic Government showing the true will of the people; that the secrecy
of voting has always been the hallmark of the concept of free and fair election,
~
thus very essential for the democratic principles adopted in our polity; that
this is the spirit of our.constitutional law and also universally accepted norm c
and any departure therefrom in this respect impinges on the fundamental
rights, in particular freedom of expression by the voter; that the sanctity and
purity of election where voter casts his choice without any fear and favour
can be ensured only if it is by secret ballot; that the Election Commission of
India, which under the Constitution has been given the plenary powers to
supervise the elections freely and fairly, had opposed the impugned amendment D
of changing the secret ballot system, its view has, therefore, to be given proper
weightage; and that the observations of the Ethics Committee on which the
impugned amendment was brought about not only fail to justify the amendment
but also run counter to the Constitutional scheme of conducting free and fair
election. E
Union of India submitted that the impugned amendments became
necessary in view of various deficiencies experienced in the working of the
Representation of People Act, 1951; that these amendments did not alter or
distort the character of the Council of States; that the concept of residence/
domicile is a matter of qualification under Article 84(C) of the Constitution F
which is to be prescribed by the Parliament; that the members of the
Legislative Assembly are in the best position to decide as to who would
~
represent thern in the Council of States; that by the impugned amendment,
""' the qualification is made more broad based and that the amendment became
necessary for ensuring representation of unrepresented States; that there is
no constitutional requirement for a member of the Council of States to be
G
either an elector or an ordinary resident of the State which he represents
and, therefore, the word "States" appearing in clause (4) of Article 80 does
not comprise the requirement of residence; that basic structure doctrine is
inapplicable to Statutes; that the Constitution does not prescribe any
mandatory requirement that the elected member should be an elector in the H
~
8 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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

It was submitted for the State of Tamil Nadu that the principle of
'contemporanea expositio' is relevant for interpreting the words "the
representative of each State" in Article 80(4) of the Constitution; that the
F RP Acts 1950 and 1951 are contemporaneous legislations made by the
Constituent Assembly itself acting as provisional Parliament and that they
are useful aid for the interpretation of Articles 79 and 80 of the Constitution,
just as subordinate legislation is for interpreting an Act; that only a person
belonging to a State will have the capacity to represent the State in the Upper
G House and that a person could claim to belong to a State only by birth, domicile
or residence; that some visible nexus between the State and the person seeking
to be its representative is a must in the scheme of the Constitution; that the
words "representatives of the States" in Article 80(1)(b) and (2) and the words
"representatives of each State in the Council of States" in Article 80( 4) need
to be interpreted in such a manner that they would strengthen the basic
H structure of the Constitution, having due regard to its federal character and
~li

1

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

HELD: l. l. The Constitution has established a federal system of
Government with bi-camera! legislature at the Centre which is not something
which was grafted in the Constitution for the first time. Its history goes back
B
to Government of India Act, 1915 as amended in 1919. Even under the
Government of India Act, 1919, the qualification of residence in relation to a
particular constituency was considered to be unnecessary. This position is

.. ~
'
indicated by Rule XI of the then Electoral Rules. This position is also indicated
by the provisions of the Government of India Act, 1935 under which the
Legislature at the Centre was bi-cameral. (42-B-CI c
1.2. The rule of interpretation says that in order to discern the intention
behind the enactment of a provision if ambiguous and to interpret the same,
one needs to look into the historical legislative developments. (41-F(

Re: Special Reference No. 1 of 2002 12002] 8 SCC 237, relied on.
D
1.3. Clause 60 of the first draft Constitution states that all matters
relating to or connected with elections to either House of the Federal
Parliament shall be regulated by the Fourth Schedule, unless otherwise
provided by the Act of the Federal Parliament. However, the Fourth Schedule
was omitted by the Drafting Committee. Therefore, with this deletion, the E
requirement of residence was done away with. It shows that residence was
never the constitutional requirement. [43-D-E-Fl

l.4. The legislative history shows that qualification of residence has
never been a constant factor. The ownership of assets, dwelling house, income,
residence etc. were considered as qualification from time to time depending F
upon the context and the ground reality. The power to add qualifications was
given to the Federal Parliament. Therefore, the legislative history of
constitutional enactments shows that residence or domicile are not the
essential ingredients of the structure and the composition of the Upper House.
143-F-G-Hl
1.5. Residence is a matter of qualification. Therefore, it comes under G
Article 84 which enables the Parliament to prescribe qualifications from time
to time depending upon the fact situation. Unlike USA, residence is not a
constitutional requirement in India. In the context of Indian Constitution,
residence/domicile is an incident of federalism which is capable of being
regulated by the Parliament as a qualification which is the subject matter of H
10 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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

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

2.2. The Indian union has been described as the 'holding together' of
different areas by the constitution framers, unlike the 'coming together' of
constituent units as in the case of the U.S.A. and the confederation of Canada.
Therefore, the Rajya Sabha is vested with a contingency based power over t"
c state legislatures under Article 249, which contributes to the 'Quasi-federal'
nature to the Government of the Indian union.146-D-EI

2.3. Article 251 when read with Article 249 of the Constitution provides
that in case of inconsistency between a law made by parliament under Article
249 and a law made by a State legislature, the Union law will prevail to the
D
extent of such inconsistency or 'repugnancy'. In effect this provision permits
the Raj ya Sabha to encroach upon the specified legislative competence of a
state legislature by declaring a matter to be of national importance. Though
it may have been incorporated as a safeguard in the original constitutional
scheme, this power allows the Union Government to interfere with the
E functioning of a State government, which is most often prompted by the
existence of opposing party-affiliations at the Central and State level.
[46-F-G-HI

2.4. The nature of Federalism in Indian Constitution is no longer res
integra. There can be no quarrel with the proposition that Indian model is
F broadly based on federal form of governance.147-A-B]

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

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

State of West Bengal v. Union of India, f1964] I SCR 371; Re: Under
Article 143, Constitution of India, (Special Reference No. l of 1964) AIR
H
i
1

, KULDIPNA YAR v. U.0.1.

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

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

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

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

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

3.1. It is well settled that legislation can be declared invalid or
• unconstitutional only on two grounds namely, (i) lack of legislative competence H
*
12 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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

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

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

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

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

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

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

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

KULDIPNA Y AR v. U.0.1. 13

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

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

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

5.1. All enactments passed by provisional Parliament, including the RP
Act 1951, are laws like any other law made by Parliament. Accordingly, each F
of them is subject to power of Parliament to bring about amendments like
any other statute. 176-Cf
.l,
5.2. The proposition that the Constitution and the R.P. Acts though form
an integrated scheme of elections, but it does not follow that on this account
the domiciliary requirement in Section 3 of R.P. Act 1951 has to be treated G
as a constitutional requirement. 176-EI
.....
"-
6.1. The expression "representatives of States" as used in Article 80
and the expression "representation of States" as used in proviso (d) of Article
368(2) of the Constitution are not synonymous or employed in same sense.
-~ These expressions are materially different and used in different context in H
14 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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

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

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

H 7.4. The qualification of "ordinarily resident" is provided for •'
KULDIPNA YAR v. U.0.1. 15

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

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

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

7.7. Parity in the matter of qualification to the extent concerning
~>. residence of a person seeking to be elected as member of either House does
~ not make one House duplicate of the other. Their role, functions, powers or H
16 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A prerogatives, especially in the matter of legislation, remain unchanged.
[83-A)

8. The employment of the word "each" preceding the word "State", in
the context of representation in the Council of States, is meant only to
underscore the fact that the Legislative Assembly of each State was intended
B to be a separate electoral college for returning a member to fill in the seat
allocated to the particular State as specified in the Fourth Schedule. Nothing
more and nothing less. This is more so, in view of the fact that the expression
"representatives of the States" had already occurred twice earlier in the
preceding clauses of Article 80. The word "each" was not required to be used
C in the context of Part C States (now Union territories), in Article 80(5), as
originally provided or even later amended, since the manner of representation
of such units of the Union of India was left to be prescribed by the Parliament
and since each such unit was not intended at that time to be provided with its
own Legislative Assembly. Hence; it cannot be said that the use of the word
"each" in Article 80(4) gives to the House the character of a body
D representing the States. (89-A-B-C-D)
9. There was a material difference between the qualification of domicile
within the particular State as prescribed for the Council of States and the
qualification of domicile within any Parliamentary constituency in India as
prescribed for the House of the People. This was subject matter of debate in
E the provisional Parliament on 11th May 1951, at the time of consideration of
the Bill, which would later take the shape of Representation of People Act,
1951. In the course of the said debate it came to be pointed out as inco,ngruous
as to why a candidate to the Council of State~ should be a resident of the State
concerned while a candidate to the House ofthe People need only be a resident
p in any Parliamentary constituency in the country. [92-F-G)
10.1. It may be desirable to give a broad and generous construction to
•
the Constitutional provisions, lmt while doing so the rule of "plain meaning"
or "literal" interpretation, which remains "the primary rule", has also to be
kept in mind. In fact the rule of "literal construction" is the safe rule unless
G the language used is contradictory, ambigu::ius, or leads really to absurd
results. (94-D-E)

G. Narayanaswami v. G. Pannerselvam & Ors., (1972J 3 SCC 717,
followed.

H 10.2. No contradiction, ambiguity, or absurdity is found in the provisions
KULDIPNA YAR v. U.O.I. 17
1 of the law as a result of the impugned amendment. Even while construing the A
provisions of the Constitution and the RP Acts in the broadest or most
generous manner, and following the rule of "plain meaning" or "literal"
interpretation, the contentions of the petitioners cannot be acceded to.
[94-H; 95-A[

I I.I. A representative of the State is as much a Member of Parliament B
as is a member of the House of the People. The expression "representatives"
is equally used with reference to the House of the People. There is thus no
.\ distinction between the expressions 'members' and 'representatives'. Hence,
the plea that the choice of expression "representative" in relation to the
Council of States as against word "member" used in relation to the House of
the People holds the key is rejected. [86-B-C[
c
•'• 11.2. Upon being given their plain meaning, the words "representatives
of the States" in Article 80(l)(b), Article 80(2) and Article 80(4) must be
interpreted to connote persons who are elected to represent the State in the
Council of States. It is the election that makes the person elected the D
"representative". In order to be eligible to be elected to the Council of States,
a person need not be a representative of the State before hand. It is only when
1
he is elected to represent the State that he becomes a representative of the
State. Those who are elected to represent the State by the Electoral College,
which for present purposes means the elected members of the legislative
assembly of the State, are necessarily the "representatives" of the State. E
[95-B-C[

11.3. Every member of Parliament, be one "nominated by the President"
under Article 80(l)(a), or "a representative of the State" elected under Article
80(l)(b) read with Article 80(4) and (5), or a "member" of the House of the F
People elected under Article 81, fills a seat in Parliament. When a candidate
is elected by the electorate comprising of the members of the Legislative
Assembly of the State to represent the State in the Council of States, he is
elected and chosen as "a representative of the State". The words
"representative of the State" do not in any manner connote that the
representative must also be an elector or a voter registered in the State itself. G
It is the status acquired upon election as a member of the legislature that
bestows upon the person the character of a "representative". [95-E; 96-C-D]

Shri V. V. Giri v. Dippa/a Suri Dora & Ors., [1960] I SCR 426: AIR
(1959) SC 1318 and B.R. Kapur v. State of T.N. & Anr., [2001 [ 7 SCC 231,

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

A 11.4. The expression "representative of each State" in Article 80(4) of
the Constitution is not a qualification and cannot be read as a condition
precedent for being elected. The Constitution has dealt with "qualifications"
exclusively in Article 84 of the Constitution, as would also be clear from the
marginal note besides the contents of the provision itself. [98-EI

B 11.5. The word "representative" simply means a person chosen by the
people or by the elected Members of the Legislative Assembly to represent
their several interests in one of the Houses of Parliament. A person becomes
a representative only after he is chosen in the prescribed manner. He is not
a representative earlier. At best, he can claim to be called a candidate or a
C potential representative. The theory that before he becomes a representative
he should have some nexus other than one prescribed by the law in force is
not palatable and not supported by any law or view taken in any case.
[98-F-Gl

11.6. Article 80(4) is not being correctly read by the petitioners. The
D suggestion that the expression 'representative of each State' implies a
condition of residence or other link with the States to be represented ignores
the importance of the expression "in" preceding the expression "the Council ;.
of States". Article 80(4) does not say that representative of each State to be
elected must first be a representative of the State before election. To read
this requirement into Article 80(4) would do violence to the words and would
E be grammatically incorrect. In the provision contained in Article 80(4), thus
put in the active voice, the emphasis is on 'who elects'. In the existing passive
form, the emphasis is on how the representatives would be elected. The result,
either way, is the same. Article 80(4) deals with the manner of election and
nothing more. Therefore, the words "representative of each State" only refers
p to the members and do not import any further concept or requirement of
residence in the State. (105-C-D; F-GI
•
11.7. Undoubtedly, Section 6 of the 1951 Act continues to require
domicile within the State as a necessary qt•alification for a person seeking to
be elected as a member of Legislative Assembly or the Legislative Council of
G the State. But, in view of the law laid down by this Court in the case ofG.
Narayanaswamy, no good reason is found to make a departure therefrom,
there is no merit in the plea that the "representative of the State" elected by
the legislative assembly of the State must also be an ordinary resident of the
State just because the electorate that is electing him are required by law to
H be so. [97-D-El
KULDIPNA YAR v. U.0.1. 19

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

12. The argument that the constitutional recognition giver. to the
territorial link between the member of the Council of States(as representing
the particular State in the Council of States) and his position as a registered
elector in any Panchayat or Municipal area in that State for purposes of local B
bodies reinforced plea that the insistence on local residence within particular
state for representatives of the State in the Council of States was part of the
Constitution Scheme found to be devoid of merit for several reasons as follows:

(i) First and foremost is that the provisions under Article 243 of the C
Constitution are not exceptional in relation to a member of the Council of
States on account of his position as a registered elector in any or Municipal
area in that State for purposes of local bodies. They equally apply to the
members of the House of the People and the Legislative Assemblies (as indeed,
the Legislative Councils) of the State concerned.
D
(ii) These provisions are part of the scheme of local self-government
engrafted in the Constitution, the object sought to be achieved thereby being
to provide a linkage between the local bodies and the legislature at the State
and Union levels. The purpose sought to be achieved is to give to the Members
of State Legislature and the Parliament access to the grass-root level,
equipping them with knowledge about local problems, issues, opinions and E
aspirations, thereby strengthening democracy. The enabling provisions may
not have uniform application. Their effect would depend on the provisions
enacted or to be enacted by the respective State Legislatilres for each State.
The enabling provisions, themselves make it abundantly clear that the claim
oHhe members of the State or Union Legislature for representation in the F
Panchayat or municipality depends on various factors that may or may not
exist vis-a-vis each such member. The enabling provisions generally provide
for the qualifications of various categories of persons, which happen to include
the members of the Council of States, to be representatives in a Panchayat
or municipality, and share in local self governance. Since the members of the
Council of States are one of the several sources being tapped for the purpose G
of providing for representation of different interest groups in the deliberative
wing at the local level, it was incumbent to lay down some method of selection.

(iii) Last, but not the least, the provisions that have been referred are
Constitutional provisions. Even on the premise that in enacting them the factor
of registration as elector within a particular Panchayat or municipal area H
20 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

A was considered important in relation to the members of the Council of States
so as to give them the additional responsibility of representation in the local
Panchayat or municipality, it cannot be said that these provisions add the
requirement of domicile to the qualifications for membership in the Council
of States. There is no such express Constitutional provision prescribing such
B additional qualification.199-F-G-H; 100-A-H; IOI-Al

13.1. Even in countries where strict federalism exists, with the passage
of time, the original role of the Senate of guarding interests of the States as
political units has largely disappeared. With globalization, the US Senate now
functions as a national institution rather than as a champion of local interests.
C 1102-GI

13.2. The concepts of the words 'residence' and 'representative' are not
fixed concepts, therefore, they have to change with time. The constitutional
framers have kept that flexibility in mind, they have left it to the Parliament
to decide the qualification for membership of the Parliament and, while
D deciding the qualification, the Parliament has to take into account the
contextual scenario. There cannot be one uniform, consistent and internal
definition or connotation of these concepts. These concepts undergo changes ?-
with the passage of time. They cannot be decided etymologically by reference
to dictionaries. 1103-A-BI

E 13.3. The words "ordinarily'"and "resident" have been used together
in other statutory provisions as well and as per the Law Lexicon they have
been construed as not to require that the person should be one who is always
resident or carries on business in the particular place. The expression coined
by joining the two words has to be interpreted with reference to the point of
F time requisite for the purposes of the provision, in the case of Section 20 of
RP Act, 1950 it being the date on which a person seeks to be registered as
an elector in a particular constituency. Thus, residence is a concept that may
also be transitory. Even when qualified by the word "ordinarily" the word
"resident" would not result in construction having the effect of a requirement
of the person using a particular place for dwelling always or on permanent
G uninterrupted basis. Thus understood, even the requirement of a person being
"ordinarily resident" at a particular place is incapable of ensuring nexus
between him and the place in question.1104-B-D-EI

Cicutti v. Suffolk Counlly Council, 119801 3 All. ER 689, referred to.

H 3.4. The nexus between the candidate and the State from which he gets
KULDIPNA VAR v. U.0.1. 21
elected to fill a seat in the Council of States is provided by the perception and A
vote of the elected Members of the Legislative Assembly who consider him
(necessarily an Indian Citizen) as best qualified to further the interests of
the State in Parliament. 1104-FI

13.5. When voting for a candidate in an election, perception of his skills
as a legislator, his knowledge of State affairs, his services to the constituency B
he seeks to represent and the satisfaction or confidence in having him as the
representative of the electorate are enough considerations or qualifications.
These considerations undoubtedly are certainly of more weight than transitory
or often illusory concept of"residence".1104-GJ

13.6. Our electoral system needs to be rendered free from all known C
vices and so there is no reason why Parliament should be denied the
opportunity to bring in such legislation as is deemed by it, in its wisdom, as
would plug the possible holes of abuse, for which Parliament has the necessary
legislative competence. 1105-BI
D
14.1. There may be a separate machinery available under the RP Act,
,,. 1950 to question and inquire into the correctness of the entry of the name of
an individual in the electoral roll of a particular constituency, a remedy distinct
from that of an election petition to challenge the election of the candidate
declared to have been _returned in an election, but this fact cannot lead to the
conclusion, by any stretch of reasoning, that the removal of the domiciliary E
requirement from the qualifications for membership of Parliament is opposed
to law or common sense. 1108-H; 109-A-B)

Hari Prasad Mulshanker Trivedi v. V.B. Raju & Ors .• !19N) 3 SCC 415,
distinguished.
F
14.2. The Constitution has not made it a requirement that a person
chosen to represent a State in the Council of States must necessarily be a
voter in that State itself. The Constitution, after prescribing certain
qualifications and disqualifications, has left it to the Parliament to provide
other such qualifications or disqualifications. 1110-FJ G
14.3. The provisions under Articles 80(4) and 327 of the Constitution
leave no room for doubt that the Constitution recognized the need for changes
in the law relating to elections from time to time and entrusted Parliament
with the responsibility, as also the requisite power, to bring in legislative
measures as and when required in such regard, which would include the power H
22 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A to amend the existing measures.1115-C-DI

Hari Prasad Mu/shanker Trivedi v. V.B. Raju & Ors., I1974) 3 SCC 415:
1197411 SCR 548, followed.

14.4. Parliament has the power, rather an exclusive one, under Article
B 246 to make laws with respect to any of the matters enumerated in the Union
List of the Seventh Schedule. In exercise of the powers conferred on it under
Article 246 read with Articles 84 and 327 and Entry 72 of the Union List of
the Seventh Schedule to the Constitution, it is a matter for Parliament to
decide by making law as to what qualifications "other" than those prescribed
C in the Constitution be made compulsory to be fulfilled by persons seeking to
fill seats in the Council of States as representatives of the States. The
Constitution does not put ;rny restriction on the legislative powers of the
Parliament in this regard. If the Constitution had intended that the
"representatives" of the States must be residents of the State or must have a
link or nexus with the State from where the representatives are chosen, such
D a provision would have been expressly made in this context as has been done
in respect of requirement of age and citizenship. In the absence of such
express requirement, the requirement of residence or any other nexus as a
matter of qualification cannot be read into Article 80 or 84 of the Constitution.
(115-F, G, H; 116-C; DI

E 14.5. The fact that a candidate needs to be enrolled in any parliamentary
constituency in India does not deprive him of the locus to be the representative
of the State simply on the ground that he is not enrolled there. (116-EJ

14.6. The argument that once the Parliament prescribes a qualification,
it cannot revoke or repeal it, can not be accepted as there is no such limitation
F on Parliament's legislative power, which is confirmed by Entry 72 of the Union
List in the Seventh Schedule. The language of Clause (c) of Article 84 creates
a power and not a duty. If it is not bound to prescribe any additional
qualification, it is also not bound to provide a substitute for the one done away
with.1118-FJ
-
G
14.7. The thrust of the argument of the petitioners is that 'outsider'
would be given preference to an 'insider' in the election to the Council of
States. This need not be invariably the end result, since outcome of an election
would depend on the choice of the Electoral College, the legislative assembly
of the State, than on any other factor. In any event, even if an 'outsider' is
H selected, it is too far-fetched to contend that the "character" of the House
KULDIPNAYAR v. U.0.1. 23
would consequently stand altered. What has been essentially done by the A
amendment is to provide that even a person registered as an elector outside
the State can contest the election to the Council of States from that State.
The choice of the electors has been widened and expanded by making this
provision.1118-G-H; 119-AI

15. The Statement of Objects and Reasons ofa proposed legislation is B
not the compendium of all possible reasons or justification. No contradiction
has been found in the stand taken by the Union of India in these proceedings
in relation to the Statement of Objects and Reasons of the impugned
amendment. (112-G]

16. Even without going into the debate as to whether right to vote is a C
.itatutory or Constitutional right, the right to be elected is indisputably a
statutory right, i.e., the right to stand for elections can be regulated by law
made by Parliament. It is pure and simple a statutory right that can be created
and taken away by Parliament and, therefore, must always be subject to
statutory limitations. (116-GI D
People's Union For Civil Liberties & Anr. v. Union of India & Anr.,
-t (20031 4 SCC 399; N.P. Ponnuswami v. Returning Officer, Namakkal
Constituency & Ors., (19521SCR218; Joseph Theberge & Anr. v. Phillippe
Laudry, (1876) 2 AC 102; Hari Prasad Mulshanker Trivedi v. V.B. Raju &
Ors., [197413 SCC 415 and Jyoti Basu v. Debi Ghosal, (198211 SCC 691, E
relied on.

17.1. The impugned amendment would not make Section 3 ofR.P. Act,
1951 nugatory. Whilst Article 84 prescribes citizenship of India as
qualification for membership, Section 3, after the amendment, restricts
qualification of member of Council of States to an elector who is resident in F
India. This would exclude non-resident Indian citizens. This is also a
~ significant restriction. It is, therefore, clear that Section 3 continues to
provide a qualification for membership of the Council of States. (119-C-DI

17.2. It is important to note that, even after the amendment, (i) the G
electors remain the same, namely the State Assemblies; (ii) the elected
persons remain representatives of the State; and (iii) the choice and the
decision as to whom to elect continues to be with the State Legislative
Assemblies. (119-E-F)

17.3. The field of consideration before the State Assembly is enlarged. H
24 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A But the ultimate choice and decision is always that of the State Legislatures.
Therefore, if they decide to elect a person who is not ordinarily a resident of
the State they would do so with the full knowledge of all circumstances and it
would be their decision as to who should be the representative of their State.
This, by no stretch of reasoning, can be said to be an abdication of the
B Parliament's obligations or functions.1119-F-GI

17.4. The impugned amendment to Section 3 of the RP Act, 1951 cannot
be assailed as unconstitutional. It passes muster in view of legislative
competence. It does not transgress the provisions of Part III of the
Constitution, nor for that matter any other provision, express or implied, of
C the Constitution.1120-B]

18.1. Through the impugned amendments a proviso each has been added
to Sections 59, 94 and 128 of the R.P. Act, 1951. These amendments have
carved out an exception to the general rule of secrecy for purposes of the
elections for filling up a seat in the Council of States, which is now to be held
D "by open ballot", thus no longer subject to the principle of secret ballot.
1120-FI

18.2. It has been authoritatively held, time and again, by this Court that
democracy is a basic feature of the Constitution of India, one that is not
amenable to the power of amendment of the Parliament under the Constitution.
E It has also been the consistent view of this Court that the edifice of democracy
in this country rests on a system of free and fair elections. These principles
are discernible not only from the preamble, which has always been considered
as part of the Constitution, but also from its various provisions.1124-G-HI

Kesavananda Bharati Sripadaga/varu v. State of Kera/a & Anr., 119731
F 4 sec 225, followed.

18.3. There can be no doubt about the fact that democracy is a basic
feature of the Constitution of India and the concept of democratic form of
Government depends on a free and fair election system. (129-GI

S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, [1980] Supp. SCC
G 53; Kihoto Hollohan v. Zachillhu & Ors., (1992) Supp. 2 SCC 651; P.V.
-
Narasimha Rao v. State (CBIISPE), 119981 4 SCC 626; Union of India v.
Association for Democratic Reforms & Anr., 1200215SCC294 and People's
Union For Civil Liberties & Anr. v. Union of India & Anr., 1200314 SCC 399,
relied on.
H
KULDIPNA Y AR v. U.0.1. 25
18.4. There is no basis to contend that the right to vote and elect A
representatives of the State in the Council of States is a Constitutional right.
Article 80 (4) merely deals with the manner of election of the representatives
in the Council of States as an aspect of the composition of the Council of
States. There is nothing in the Constitutional provisions declaring the right
to vote in such election as an absolute right under the Constitution. B
1135-F-GI

Jyoti Basu v. Debi Ghosal, 1198211 SCC 691, relied on.

19.1. It is the elected members of the Legislative Assembly who
constitute, under Article 80 the Electoral College for electing the
representative of the State to fill the seat allocated to that State in the Council C
of States. It is not the entire Legislative Assembly that becomes the Elecfaral
College, but only the specified category of members thereof. When such
members assemble at a place, they do so not to discharge functions assigned
under the Constitution to the Legislative Assembly. Their participation in the
election is only on account of their ex-officio capacity of voters for the electi(ln. D
Thus, the act of casting votes by each of them, which also need not occur with
all of them present together or at the same time, is merely exercise of
franchise and not proceedings of the legislature. 1139-F-G-HI

19.2. It is not without significance that, barring the exception in case
of independents, which are few and far between, experience has shown that it E
is the political parties that mostly set up the members of legislatures at the
Centre or in the States. One can also refer to the nomination papers
prescribed under the Conduct of Election Rules, 1961 for election to the
Council of 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 F
election. This declaration binds the elected legislators in the matter of
allegiance to the political party in all matters including the support of the
party to a particular candidate in election to the Council of States. Yet, in
view of the law laid down in Kihoto Hallahan v. Zachil/hu & Ors., it is not
correct to contend that the open ballot system tends to expose the members of G
the Legislative Assembly to disqualification under the Tenth Schedule 5ince
that part of the Constitution is meant for different purposes. 1146-A-B-C-DI
Kihoto Hallahan v. Zachillhu, 119921 Supp. 2 SCC 651, relied on.
19.3. Universal Declaration of Human Rights through Article 21 and
International Convention on Civil and Political Rights through Article 25 H
26 SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R.

A provide for formation of a Government through secret ballot Prime importance
is given in these two Human Rights instruments on "will of the electors"
r -
giving basis to the authority of Government It may however be noticed that in
Article 21 of Universal Declaration of Human Rights the requirement is
satisfied not necessarily by secret ballot but even "by equivalent free voting
procedures". [147-E-Fl
B
19.4. Even under the elections that continue to be based on principle of
secrecy of voting, it is for the voter to choose whether he wishes to disclose
for whom he had voted or would like to keep the secrecy intact. If he so
chooses, he can give up his privilege and in that event, the secrecy of ballot
should yield. Such an event can also happen if there is fraud, forgery or other
c illegal act and the disclosure sub-serves the purpose of administration of
justice. [152-EI

S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, [19801 Supp. SCC
53, referred to.

D Queen v. Beardsa/l, LR (1875-76) 1 QB 452, referred to.
19.5. The submission of the Petitioner that a right to vote invariably
carries as an implied term, the right to vote in secrecy, is not wholly correct.
Where the Constitution thought it fit to do so, it has expressly provided for
elections by secret ballot. It is apt to point out that unlike silence on the subject
E in the case of provisions of the Constitution concerning ele~tion to fill the
seats of the representatives of States in the Council of States, Articles 55(3)
and 66(1 ), that relate to the manner of election for the offices of the President
and the Vice President respectively, provide for election by "secret ballot".
[156-G-H; 157-A)

F A. Neelalohithadasan Nadar v. George Mascrene & Ors., [19941 Suppl.
2 sec 619, relied on.

;.
19.6. lfthe right to vote by itself implies or postulates voting in secrecy,
...::::
then Articles 55(3) and 66(1) of the Constitution would not have required
inclusion of such words. The necessity for including the said condition in the
G said Articles shows that "secret ballot" is not always implied. It is not
incorporated in the concept of voting by necessary implication. It follows that
for 'secret ballot' to be the norm, it must be expressly so provided. To read
into Article 80(4) the requirement of a secret ballot would be to read the words
"and the voting at such election shall be by secret ballot" into the provision.
H To do so would be against every principle of Constitutional and statutory
KULDIPNA Y AR v. U.0.1. 27

1 construction. Thus, from this angle, it is difficult to hold that there is A
Constitutional infirmity in providing open ballot system for the Council of
States. [157-C-D-EI

19.7. Where the law on the subject is silent, Article 324 is a reservoir
of power for the Election Commission to act for the avowed purpose of
pursuing the goal of a free and fair election, and in this view it also assumes B
the role of an adviser. But the power to make law under Article 327 vests in
the Parliament, which is supreme and so, not bound by such advice.
[157-H; 158-AI
1
Mohinder Singh Gill v. Chief Election Commissioner, 1197811 SCC 405,
referred to.
c
19.8. The privilege to keep the vote secret is that of the elector who
may choose otherwise; that is to say, he may opt to disclose the manner in
which he has cast his vote but he cannot be compelled to disclose the manner
in which he has done so, except in accordance with the law on the subject
D
which ordinarily comes into play only in case the election is challenged by
way of election petition before the High Court. [162-B-q

" 19.9. The effect of the amended Rules, thus, is that in elections to the
Council of States, before the elector inserts the ballot paper into the ballot
box, the authorized agent of the political party shall be allowed ·to verify as to E
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 F
put in position does not mean open to one and all. It is only the authorized
agent of the political party who is 11llowed to see and verify as to whom such
an elector casts his vote. The prerogative remains with the voter to choose as
to whether or not to show his vote to the authorized agent of his party.
(182-F-G-HI G
':; 19.10. Voting at elections to the Council of States cannot be compared
with a general election. In a general election, the electors have to vote in a

. ~
secret manner without fear that their votes would be disclosed to anyone or
would result in victimization. There is no party affiliation and hence the choice
is entirely with the voter. This is not the case when elections are held to the H
28 SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R.

A Council of States as the electors arc elected members of the legislative r
assemblies who in turn have party affiliations. [163-A-B[

20. l. The right to vote in 'free and fair elections' is always in terms of
an electoral system prescribed by national legislation. The right to vote
derives its colour from the right to 'free and fair elections'; that the right to
B vote is empty without the right to 'free and fair elections'. It is the concept of
'free and fair elections' in terms of an electoral system which provides content
and meaning to the 'right to vote'. In other words, 'right to vote' is not an
ingredient of the free and fair elections. It is essential but not the necessary
ingredient. [167-F-G I ~

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

"Australian Constituitonal law" 2nd Edition by Fajgenbaum and
Hanks, referred to.
D
20.2. It is evident that the right to vote is a concept which has to yield
to a concept of the attainment offree andfair elections. The nature of elections,
namely, direct or indirect, regulates the concept of right to vote. Where •
elections are direct, secret voting is insisted upon. Where elections are
E indirect and where members are chosen by indirect means, such as, by
parliament or by legislative assembly or by executive, then open ballot can be
introduced as a concept under the electoral system of voting. In the case of
direct elections, members are chosen directly by popular vote which is not
the case under indirect elections. Therefore, it cannot be said that the concept
of open ballot would defeat the attainment of free and fair elections.
F [175-D-E-F[

"Australian Constitutional law" (2nd Edition), referred to.

20.3. It cannot be forgotten that the existence of political parties is an
essential feature of our Parliamentary democracy and that it can be a matter
G 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
H introduced as an essential feature of the purity of elections in case of indirect
)
~

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

20.4. The distinguishing feature between 'constituency-based
A

representation' and 'proportional representation' in a representative
democracy is that in the case of proportional representation, members are
elected on party lines. They are subject to party discipline. They are liable to
be expelled for breach of discipline. Therefore, to give effect to the concept B
of proportional representation, Parliament can suggest 'open ballot'. Jn such
a case, it cannot be said that 'free and fair elections' would stand defeated
by 'open ballot'. (180-E-Ff
;
United Democratic Movement v. President of the Republic of South
Africa and Ors., (2003) 1 SA 495 and King v. James, (1972) 128 CLR 221, c
referred to.

20.5. Every vote on a motion inside the House is by an open ballot. The
election of a Speaker, Deputy Speaker of the House of the People and the
Deputy Chairperson of the Council of States is by a division which is a system
of open ballot. Reference may be made in this respect to Rules 7, 8, 364, 365, D
367, 367 A, 367 AA and 3678 of Rules of Procedure and the Conduct of
Business in the Lok Sabha and Rules 7, 252, 253 and 254 of Rules of
-t Procedure and Conduct of Business in the Council of States. Hence, the
justification of the impugned amendment on the reasoning that open voting
eradicates the evil of cross-voting by electors who have been elected to the
Assembly of the particular State on the basis of party nomination cannot be
E
lightly brushed aside. (180-H; 181-A-B)

20.6. The contention that the right of expressio~ of the voter at an
election for the Council of States is affected by open ballot is not tenable, as
an eleded MLA would not face any disqualification from the Membership of
the House for voting in a particular manner. (181-E]
F

20. 7. Since the amendment has .been brought in on the basis of need to
avoid cross voting and wipe out evils of corruption as also to maintain the
integrity of our democratic set-up, it can also be justified by the State as a
reasonable restriction under Article 19(2) of the Constitution, on the
assumption that voting in such an election amounts to freedom of expression
G
under Article 19(1)(a) of the Constitution. (181-F-G]

20.8. There can be no denial of the fact that the manner of voting in the
election to the Council of States can definitely be regulated by the Statute.
The Constitution does not provide that voting for an election to the Council of
. ) States shall be by secret ballot. The voting for an election to the Council of
H
.if
30 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A States till now was by secret ballot due to a law made by Parliament. It cannot
be said that secret ballot in all forms of elections is a Constitutional right.
1181-H; 182-Al

N.P. Ponnuswami v. Returning Officer, Namakkal Constituency & Ors.,
(1952) SCR 218 and People's Union/or Civil Liberties (PUCL) v. Union of
B India & Anr., [1997) 1 sec 301, referred to.

20.9. By the impugned amendment, the right to vote is not taken away.
Each elected Member of the Legislative Assembly of the concerned State is
fully entitled to vote in the election to the Council of States. The only change \
that has come owing to the impugned amendment is that he has to disclose
C the way he has cast the vote to the representative of his Party. Parliament
would justify it as merely a regulatory method to stem corruption and to
ensure free and fair elections and more importantly to maintain purity of
elections. [182-B-CI

D 20.10. A multi party democracy is a necessary part of the basic structure
of the Constitution. An amendment to law intended to restore popular faith in
parliamentary democracy and in the multi party system cannot be faulted.
1182-F) ,.
20.11. The principle of secrecy is not an absolute principle. The
E legislative Amendment cannot be struck down on the ground that a different
or better view is possible. It is well settled that a challenge to Legislation
cannot be decided on the basis of there being another view which may be more
reasonable or acceptable. A matter within the legislative competence of the
legislature has to be left to the discretion and wisdom of the latter so long as
it does not infringe any Constitutional provision or violate the Fundamental
F rights. 1182-G)
21. The secrecy of ballot is a vital principle for ensuring free and fair
elections. The higher principle, however, is free and fair elections and purity
of elections. If secrecy becomes a source for corruption then transparency
have the capacity to remove it. The Legislation pursuant to a legislative policy
G that transparency will eliminate the evil that has crept in would hopefully serve
the larger object of free and fair elections. (182-H; 183-AI
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 217 of2004.

(Under Article 32 of the Constitution of India.)
H WITH
KULDIPNAYAR v. U.0.1. [SABHARWALC.I.] 31
'j
Writ Petition (C) Nos. 262, 266 and 305 of2004. A
Rajinder S11cher, F.S. Nariman, Sanjay Parikh, A.N. Singh, Pawan Kumar,
P.H. Parekh, Subhash Shanna, Shakum Sharma, Mary Mitzy, Ranjeeta Rohatgi
(for Mis P.H. Parekh & Co.), Charania! Shau, In-Person, Ajay K. Agrawal, Alka
Agrawal and Anamika Agarwal for the Petitioner.

Milon K. Banerjee, A.G., G.E. Vahanvati, S.G., Aruneshwar Gupta, A.A.G.,
B
D.P. Singh, A.A.G., J.S. Attri, A.A.G., Avatar Singh Rawat, A.A.G., Ram
Jethmalani, Md. Yusuf, Arun Jaitley, P.P. Rao, Dr. R.G. Padia, K. Radhakrishnan,
Gaurav Agarwal (for Attomery General of India), Naveen Kumar Singh, Avneet
Toor, Sanjay Jain, Arun K. Sinha, Rajshekhar Rao, Indra Sawhney, Anil Katiyar,
Vimla Sinha, Gopall Singh, Rituraj Biswas, Hemantika Wahi, Pinky Behera, c
Janaranjan Das, Swetaketu Mishra, Kshyama Singh, Kamini Jaiswal, Tara
Chandra Sharma, Neelam Sharma, Rajeev Sharma, Ajay Sharma, Rupesh Kumar,
D. Bharathi Reddy, P. Vinay Kumar, Sneha Bhaskaram (for T.V. Ratnam), S.
Muralidhar, Amit Sharma, A. Mariarputham, Aruna Mathur (for M/s. Arputham,
Aruna & Co.), Ranjan Mukherjee, B.S. Banthia; Ila Kapur, Abhinav Mukherjee,
Pooja Mahajan, Neoma Vasdev, Khwairakpam Nobin Singh, Anil Shrivastav, D
Saurabh Srivastava, Sanjay R. Hegde, Subromonium Prasad, Gopalakrishnan,
't R., Abhay Kumar, Jai Kishore, K. Ramesh, Garvesh Kabra, Anuvrat Sharma.
(for Praveen Swamp), Ravi P. Mehrotra, Bina Madhavan (for M/s. Lawyer's
Knit & Co.), V.K. Sidharthan, J.R. Luwang (for M/s. Corporate Law Group),
Suparna Srivastava, Deepti Singh, Rajesh Srivastava, Upamanyu Hazarika, E
Satya Mitra, Sumita Hazarika, S. Ravi Shankar, R. Yamunah Nachiar,
Hemanandhini Deori, Lesi, A. Subhashini, Navin Prakash, S.W.A. Qadri,
Devadatt Kamat, Hrishikesh Baruah, Chinmoy Pradip Sharma, Suruchi Suri,
D.S. Mahra, Gopal Prasad (for Anil Kumar Jha), Jatinder Kumar Bhatia, K.N.
Madhusoodhanan, R. Sathish, Intervenor-In-Person (I.A. No. 4) (N.P.), S.S.
Shinde and V.N. Raghupathy for the Respondents. F
~ The Judgment of the Court was delivered by
Y.K. SABHARW AL, CJ. Background

By this writ petition under Article 32 of the Constitution of India,
petitioner seeks to challenge amendments made in the Representation of G
~ People Act, 1951 (for short, 'the RP Act', 1951') through Representation of
People (Amendment) Act 40 of2003 which came into force from 28th August,
2003. By the said Amendment Act 2003, the requirement of"domicile" in the
~,
State concerned for getting elected to the Council of States is deleted which
... according to the petitioner violates the principle of Federalism, a basic structure H
32 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A of the Constitution.
In the writ petition, there is a further challenge to the amendments in
Sections 59, 94 and 128 of the RP Act, 1951 by which Open Ballet System is
introduced which, according to the petitioner, violates the principle of 'secrecy'
which, according to the petitioner, is the essence of free and fair elections as
B also the voter's freedom of expression which is the basic feature of the
Constitution and the subject matter of the fundamental right under Article
I9(1 )(a) of the Constitution.

Text of the Statute before the Amending Act 40 of 2003

C From 1951 upto 2003, Sections 3, 59, 94 and 128 as originally stood were
as follows:
"3. Qualification for membership of the Council of States.-A person
shall not be qualified to be chosen as a representative of any State
or Union territory in the Council of States unless he is an elector for
a Parliamentary Constituency in that State or territory.
D
59. Manner of voting at elections.-At every election where a poll is
taken votes shall be given by ballot in such manner as may be
,
prescribed and no votes shall be received by proxy.
94. Secrecy of voting not to be infringed. No witness or other persons
E shall be required to state for whom he has voted at an election.
128. Maintenance ofsecrecy of voting.-{)) Every officer, clerk, agent
or other person who performs any duty in connection with the recording
or counting of votes at any election shall not (except for some
purposes authorized by or under any law) communicate to any person
F any information calculated to violate such secrecy.
(2) Any person who contravenes the provisions of sub-section (I)
shall be punishable with imprisonment for a term which may extencl
to three months or fine or witn both."
By Representation of People (Amendment) Act, 2003, (Act No. 40 of
G 2003), in Section 3 for the words 'in that state c,rterritory', the words 'in India'
were substituted.
In Sections 59, 94 and 128, following provisos were inserted at the end.
"59. Provided that the votes at every election to fill a seat or seats ,~

H in the Council of States shall be given by open ballot. •
, KULDIPNAYAR v. U.0.1. [SABHARWAL, C.I.] 33
94. Provided that this Section shall not apply to such witness or other A
person where he has voted by open ballot.

128. Provided that the provisions of this sub-section shall not apply
to such officer, clerk, agent or other person who performs any such
duty at an election to fill a seat or seats in the Council of States."
B
Issues

} Two issues arise for determination in this case. The first issue relates
to the content and the significance of the word 'domicile' whereas the second
issue deals with importance of the concept of 'secrecy' in voting under the
constitutional scheme. c
Broad framework of the Constitution

The Constitution of India provides for the Union Legislature, called
"Parliament", through Article 79, to consist of the President and two Houses
to be known respectively as the "Council of States", also known as the Rajya D
Sabha and the "House of the People", also known as the Lok Sabha. There
i is a similar provision in Article 168 for the State Legislature, which, besides
the Governor of the State, includes a "Legislative Assembly', also known as
the Vidhan Sabha in each State and "Legislative Council", also known as the
Vidhan Parishad, in some of the States.
E
In the Union Legislature, i.e., the Parliament, the Council of States,
consists of (not more than) 250 members, out of whom 12 are nominated by
,- the President in accordance with Article 80(3), the remaining 238 being
"representatives of the States and of the Union Territories". The Fourth
Schedule to the Constitution sets out the allocation of seats in the Council
F
of States to be filled by such representatives of the States and of the Union
..I Territories.

Article 80(4) provides that "the representatives of each State in the
Council of States shall be elected by the elected members of the Legislative
Assembly of the State in accordance with the system of proportional G
representation by means of the single transferable vote". Article 80(5) further
provides that representatives of the Union Territories in the Council of States
shall be chosen in such manner as Parliament may by law prescribe.

Article 84 is styled as a provision to indicate "Qualification for
... membership of Parliament". In clauses (a) and (b), Article 84 makes it incumbent H
34 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A for any person seeking to be chosen to fill a seat in Parliament to be a citizen
of India and of a certain age, which in the case of a seat in the Council of
States cannot be less than 30 years. Article 84(c) provides that a candidate
seeking to be elected as a Member of Parliament must "possess such other
qua! ifications as may be prescribed in that behalf by or under any law made
B by Parliament".

Part XV of the Constitution pertains to the subject matter of"Elections".
It includes, presently, Articles 324 to 329. The superintendence, direction and
control of elections vests in the Election Commission.

Article 327 confers, on the Parliament, the power, subject to the
C provisions of the Constitution, to make, from time to time by law, provisions
with respect to "all matters relating to, or in connection with, elections", inter
alia, "to either House of Parliament", including "the preparation of electoral
rolls, the delimitation of the constituencies and all matters necessary for
securing the due consideration of such House or Houses".
D
Part XI of the Constitution pertains to the "Relations between the
Union and the States". Chapter I of Part XI is in respect of "Legislative
Relations". Article 245 generally states that the Parliament, subject to the
provisions of the Constitution, may make laws for (he whole or any part of
the territory of India. Article 246 vests in the Parliament "the exclusive power"
E to make laws with respect to any of the matters enumerated in List I in the
Seventh Schedule ("Union List", hereafter). The Union List, as given in the
Seventh Schedule includes Entry No. 72, which relates to, amongst others,
the "Elections to Parliament".

History of RP Acts, 1950 and 1951
F
In the year 1952, the Parliament came to be duly constituted and
summoned to meet for the first session under the provisions of the Constitution.
Till then, the Constituent Assembly, which had prepared and adopted the
Constitution, functioned as the Provisional Parliament, in accordance with the
G provision contained in Article 379. It may be added here that after the first
General Elections had led to the two Houses of Parliament being constituted,
Article 379, having served its purpose, was deleted by Constitution (Seventh
Amendment) Act, 1956 with effect from 1st November, 1956.

The Provisional Parliament, in exercise of its authority under Article 379
H read with aforementioned enabling provisions, enacted a law called the
KULDIPNAYAR v. U.0.1.[SABHARWAL.C.1.] 35
"Representation of the People Act, 1950" (the RP Act, 1950), which came into A
force with effect from 12th May, 1950. This law had been enacted to provide
for "the allocation of seats in and the delimitation of constituencies for the
purpose of election to, the House of the People and the Legislatures of States,
the qualifications of voter at such elections, the preparation of electoral rolls,
and matters connected therewith". It must be mentioned here that the subject
matter relating to "the manner of filling seats in the Council of States to be B
filled by the representatives of Part-C States (later "Union Territories") was
inserted in this law by way of Act 73 of 1950 (to be read with the Adaptation
}
of Laws (No. 2) Order, 1956) which, among others, added Part IV A to the RP
' Act, 1950.

The RP Act, 1950 did not contain all the provisions relating to elections.
c
Provisions for the actual conduct of elections, amongst others, to the Houses
of Parliament, the qualifications for the membership of such Houses etc. had
been left to be made in subsequent measures. In order to make provisions for
such other subjects, the Provisional Parliament, in exercise of its authority
under Article 379 read with aforementioned enabling provisions, enacted the D
RP Act, 1951, which was brought into force with effect from 17th July, 1951.

Chapter I of Part II of the RP Act, 1951 related to "Qualifications for
membership of Parliament". It includes two sections, namely Sections 3 and
4. We are not much concerned with Section 4 inasmuch as it pertains to
qualifications for membership of the House of the People. Section 3 of the RP E
Act, 1951, in its original form is the main bone of contention here.

Section 3 of the RP Act, 1951, as originally enacted, read as under:

"3. Qualification for membership of the Council of States.-{!) A
person shall not be qualified to be chosen as a representative of any F
Part A or Part B State (other than the State of Jammu and Kashmir)
..l
in the Council of States unless he is an elector for a Parliamentary
:=>
constituency in that State.

(2) A person shall not be qualified to be chosen as a representative
of the States of Ajmer and Coorg or of the States of Manipur and G
Tripura in the Council of States unless he is an elector for any
Parliamer.tary constituency in the State in which the election of such
representative is to be held.

(3) Save as otherwise provided in sub-section (2), a person shall not
H
-·
...

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

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

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

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

Act 40 of 2003 has amended the provision, with effect from 28th August, r
2003, so as to substitute the words "in that State or territory" with the words
"in India". The amended provision reads as under:
E "3. Qualification/or membership of the Council of States.-A person
shall not be qualified to be chosen as a representative of any State
or Union territory in the Council of States unless he is an elector for
a Parliamentary constituency in India."

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

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

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

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

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

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

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

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

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

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

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

is ordinarily resident in a constituency,

shall be entitled to be registered in the electoral roll for that H
38 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A constituency."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

- (which by virtue of Section 14 of RP Act, 1950, means the first day of January
of the year in which the electoral list of the constituency is prepared or
revised), and, what is significant here, be "ordinarily resident" in that
constituency. G
As a result of the impugned amendment to Section 3 of the RP Act,
1951, it is no longer required that the candidate for an election to fill a seat
in the Council of States be "ordinary resident" of the State to which that seat
pertains.
•• H
40 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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

Submissions on domicile requirements

B Shri Sachar, learned senior counsel for the petitioner, contended that the
impugned amendment to Section 3 of the RP Act, 1951 offends the principle
of Federalism, the basic feature of the Constitution; it seeks to change the
character of republic which is the foundation of our democracy and that it
distorts the balance of power between the Union and the States and is,
C therefore, violative of the provisions of the Constitution. In this connection,
it was urged that the Council of States is a House of Parliament constituted
to provide representation of various States and Union Territories; that its
members have to represent the people of different States to enable them to
legislate after understanding their problems; that the nomenclature "Council
of States" indicates the federal character of the House and a representative
D who is not ordinarily resident and who does not belong to the State concerned
cannot effectively represent the State.

Learned counsel further submits that India has adopted parliamentary
system of democracy in which the Union Legislature is a bi-camera! legislature,
that such legislature represents the will of the people of the State whose
E cause has to be represented by the members. It is urged that the impugned
amendments removes the distinction in the intent and purpose of Lok Sabha
and Rajya Sabha and that the mere fact that there exists numerous instances
of infringement of the law concerning the requirements of residence cannot
constitute a valid object or rational reason for deleting the requirement of
F residence. Reliance is also placed in this connection on Rajya Sabha Rules
to show the importance of residence as qualification of a representative of the
State. It is further contended that the requirement of domicile makes the upper
House an 'alter ego' of the lower House.

Mr. Nariman, appearing on behalf of the petitioner Shri Indrajeet, while
G supplementing the arguments above-mentioned, contended that the
Constitution and the RP Acts 1950 and 1951 respectively have always been
read as forming part of an integral scheme under which a person ordinarily
resident in a constituency is entitled to be registered in the electoral roll of
that constituency and that the said scheme is provided for in Article 80 and
Article 84 of the Constitution as also in Sections 17, 18 and 19 of the RP Act,
H 1950 and in Section 3 of the RP Act, 1951, which scheme guarantees the
KULDIPNA YAR v. U.0.1. [SABHARWAL,CJ.] 41
representative character of the Council. It is urged that by deletion of the A
word 'domicile' or 'residence' or by not reading the word 'domicile' or
'residence' in Article 80(4), the basic requirement of the representative federal
body stands destroyed.

Shri Vahanvati, Ld. Solicitor General of India, on the question of domicile
submitted that the impugned amendments became necessary in view of various B
deficiencies experienced in the working of the RP Act 1951: that the said
amendments did not alter or distort the character of the Council of States and
·~ that the concept of residence/domicile is a matter of qualification under
Article 84(c) which is to be prescribed by the Parliament under the Indian
Constitution unlike the US Constitution. In this connection, it was urged that C
the member~ of the Legislative Assembly are in the best position to decide
as to who would represent them in the Council of States. The submission
made was that by the impugned amendment, the qualification is made more
broad based and that the amendment became necessary for ensuring
representation of unrepresented States. According to Union of India, there is
no constitutional requirement for a member of the Council of States to be D
either an elector or an ordinary resident of the State which he represents and,
• therefore, the word "States" appearing in clause (4) of Article 80 does not
comprise the requirement of residence.

Constitutional and Legislative History
E
(i) Rule of interpretation

Before coming to the legislative history, we may state that the rule of
interpretation says that in order to discern the intention behind the enactment
of a provision if ambiguous and to interpret the same, one needs to look into
the historical legislative developments . F
.> The key question is whether residence was ever treated as a
constitutional requirement under Article 80(4 ).

In re: Special Reference No. I of 2002 (2002) 8 sec 237, it was G
observed that:

"One of the known methods to discern the intention behind enacting
a provision of the Constitution and also to interpret the same is to
look into the historical legislative developments Constituent Assembly
Debates, and in the enactment preceding the enactment of the H
_,;a
42 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A Constitutional provisions."

(ii) legislative Hist01y

The Constitution has established a federal system of Government with
bi-camera! legislature at the Centre which is not something which was grafted
B in the Constitution for the first time. Its history goes back to Government of
India Act, 1915 as amended in 1919. Even under the Government of India Act,
1919, the qualification of residence in relation to a particular constituency was
considered to be unnecessary. This position is indicated by Rule XI of the
then Electoral Rules. This position is also indicated by the provisions of the
Government of India Act, 1935 under which the Legislature at the Centre was
C bi-camera!. The Lower Chamber was called 'House of Assembly'. The Upper
Chamber was called 'Council of States'. Under the Government of India Act,
1935 (for short, the 'GI Act'), the Council of States was a permanent body
with one-third of its members retiring every third year. Sixth Schedule to the
GI Act made provisions for franchise. Part I of that Schedule contained
D qualifications. It did not include residence as a qualification of the elector.
However, there were other parts to the Sixth Schedule which dealt with certain
subjects exclusive for different provinces in which there was a requirement
of residence. This was under the heading 'general requirements'. However,
there was no uniformity. In certain cases, residence was prescribed as a
qualification (for example in the case of Central Provinces, Berar and Bengal)
E whereas in provinces, namely, Assam, the qualification was 'a family dwelling
place or a place where the elector ordinarily resided'. Therefore, the qualification
of residence was not uniform. It depended upon local conditions. It deferred
from province to province.

F At this stage, we may clarify that under strict federalism, the Lower
House represents 'the people' and the Upper House consists of the 'Union'
of the Federation. In strict federalism both the Chambers had equal legislative

G
and financial powers. However, in the Indian context, strict federalism was not
adopted.

The Council of State under the GI Act became Council of States under
-
the Constitution of India. This fact is important. In this connection, we have
to look into the minutes of the Union Constitution Committee which recorded
vide Item 21 the manner of computing weight proportional representation
based on population strength. The said minutes further show the
recommendation that the Upper House should include scientists, teachers etc.
H for which purpose, the President should be given authority to nominate. The
KULDIPNA YAR v. U.0.1. [SABHAR WAL CJ.) 43
necessity of the Upper Chamber was also the subject matter of debate in the A
Constituent Assembly on 28th July, 1947. These debates indicate the purpose
for having the Upper Chamber. The object of the Upper Chamber as envisaged
was to hold dignified debates on important issues and to share the experience
of seasoned persons who were expected to participate in the debate with an
amount of learning.
B
Finally, on 28th July, 1947, a policy decision was taken by the Constituent
Assembly that the Federal Parliament shall consist of two chambers.

In the first draft Constitution, Fourth Schedule related to the composition
of the Federal Parliament. Paragraph I of Part I of the Fourth Schedule dealt C
with the general qualifications for the members which included citizenship and
minimum age of not less than 35 years in the case of a seat in the Council
of States. The said paragraph further stated that apart from citizenship and
age qualifications, it would be open to the Parliament to describe any other
qualification as may be appropriate. Paragraph 6 of Part I of the Fourth
Schedule appended to the first draft Constitution provided for the qualification D
of residence in a State for a candidate to be chosen to the Council of States.
Clause 6il of the first draft Constitution stated that all matters relating to or
connected with elections to either House of the Federal Parliament shall be
regulated by the Fourth Schedule, unless otherwise provided by the Act of
the Federal Parliament. (Emphasis supplied). However, the Fourth Schedule E
was omitted by the Drafting Committee. This was on I Ith February, 1948.
Therefore, with this deletion, the requirement of residence was done away
with.

The entire discussion with regard to the legislative history is only to
show that residence was never the constitutional requirement. It was never F
treated as an essential ingredient of the structure of the Council of States. It
has been treated just a matter of qualification. Further, the legislative history
> shows that qualification of residence has never been a constant factor. As
the legislative history shows, ownership of assets, dwelling house, income,
residence etc. were considered as qualification from time to time depending
upon the context and the ground reality. The power to add qualifications was G
given to the Federal Parliament. Therefore, the legislative history of
constitutional enactments like the GI Act shows that residence or domicile are
not the essential ingredients of tlie structure and the composition of the
Upper House.

)• At this stage, one event needs to be highlighted. The Drafting Committee H
44 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A included a separate chapter under Part Xlll on the subject of 'elections' to
the draft Constitution which corresponded to Article 327 in Part XV of the
Constitution. Article 290 empowered the Parliament to make laws providing
for all matters relating to or in connection with elections to the House of
Parliament. Ultimately, despite all objections against bicameral legislature, the
B Constituent Assembly took the decision to have Federal Parliament consisting
of two chambers. In its report, the Drafting Committee recommended basic
qualifications for membership of Parliament being a subject which should be
left to the wisdom of the Parliament. Accordingly, the Drafting Committee
recommended Article 68A which corresponds to Article 84 in the Constitution.
This was the first time when a provision was included to prescribe qualifications
C which included citizenship and the minimum age subject to any other
qualification that may be prescribed by law made by the Parliament. The
Drafting Committee justified the inclusion of Article 68A in the following
words:

"Article 152 prescribes an age qualification for members of State
D Legislatures. There is no corresponding provision for members of
Parliament. There is, moreover, a strong feeling in certain quarters that
a provision prescribing or permitting the prescription of educational
and other qualifications for membership both of Parliament and of the
State Legislatures should be included in the Draft. If any standard of
qualifications is to be laid down for candidates for membership it must
E be so precise that an election tribunal will be able to say, in a given
case, whether the candidate satisfied it or not. To formulate precise
and adequate standards of this kind will require time. Further, if any
such qualifications are laid down in the Constitution itself, it would
be difficult to alter them if circumstances so require. The best course
F would, therefore, be to insert an enabling provision in the Constitution
and leave it to the appropriate legislature to define the necessary
standards later. Whatever qualifications may be prescribed, one of
them would certainly have to be the citizenship of India." "·
To sum up, the legislative history indicates that residence is not a
G constitutional requirement of clause (4) of Article 80. Residence is a matter
of qualification. Therefore, it comes under Article 84 which enables the
Parliament to prescribe qualifications from time to time depending upon the
fact situation. Unlike USA, residence is not a constitutional requirement. In
the context of Indian Constitution, residence/domicile is an incident of
H federalism which is capable of being regulated by the Parliament as a
KULDIPNA YAR v. U.0.1. [SABHARWAL, CJ.] 45
)' qualification which is the subject matter of Article 84. This is borne out by A
the legislative history.

Composition of Parliament

India's Parliament is bicameral. The two Houses along with the President
constitute Parliament (Article 79]. The Houses differ from each other in many B
respects. They are constituted on different principles, and, from a functional
point of view, they do not enjoy a co-equal status. Lok Sabha is a democratic
chamber elected directly by the people on the basis of adult suffrage. It
)
·> reflects popular will. It has the last word in matters of taxation and expenditure.
The Council of Ministers is responsible to the Lok Sabha.
c
Rajya Sabha, on the other hand, is constituted by indirect elections.
The Council of Ministers is not responsible to the Rajya Sabha. Therefore,
the role of Rajya Sabha is somewhat secondary to that of Lok Sabha, barring
a few powers in the arena of Centre-State relationship.

Rajya Sabha is a forum to which experienced public figures get access D
without going through the din and bustle of a general election which is
-~ inevitable in the case of Lok Sabha. It acts as a revising chamber over the
Lok Sabha. The existence of two debating chambers means that all proposals
and programmes of the Government are discussed twice. As a revising chamber,
the Rajya Sabha helps in improving Bills passed by the Lok Sabha. Although E
the Rajya Sabha is designed to serve as a Chamber where the States and the
Union of India are represented, in practice, the Rajya Sabha does not act as
a champion of local interests. Even though elected by the State Legislatures,
the members of the Raj ya Sabha vote not at the dktate of the State concerned,
but according to their own views and party affiliation. In fact, at one point
of time in 1973, a private member's resolution was to the effect that the Rajya F
Sabha be abolished.
).
Composition of Rajya Sabha

The maximum strength ofRajya Sabha is fixed at 250 members, 238 of
whom are elected representatives of the States and the Union Territories and G
~ 12 are nominated by the President. The seats in the Upper House are allotted
among the various States and Union Territories on the basis of population,
the formula being one seat for each million of population for the first five
million and thereafter one seat for every two million population. A slight
advantage is, therefore, given to States with small population over the States H
,i}I.
46 SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R.
rf
A with bigger population. This is called ''weighted proportional representation".
The system of proportional representation helps in giving due representation
to minority groups. The representatives of a State in Rajya Sabha are elected
by the elected members of the State Legislative Assembly in accordance with
the system of proportional representation by means of a single transferable
B vote [Article 80(l)(b) and A11icle 80(4)]. Rajya Sabha is a continuing body. It
has nominated members. They are nominated by the President on the advice
of Council of Ministers. There is no difference in status between elected and
nominated members of Rajya Sabha except that the elected members can
participate in the election of the President whereas the nominated members
cannot do so. One-third of its members retire every two years and their seats
C are filled by fresh elections and nominations.

Rajya Sabha 's power under Article 249 of the Constitution

The Indian union has been described as the 'holding together' of
different areas by the constitution framers, unlike the 'coming together' of
D constituent units as in the case of the U.S.A. and the confederation of
Canada. Hence, the Rajya Sabha was vested with a contingency based power
over state legislatures under Article 249, which contributes to the 'Quasi-
federal' nature to the government of the Indian union. Under Article 249(1 ),
if the Rajya Sabha declares by a resolution, supported by not less than two-
thirds of it's members present and voting, that it is necessary or expedient
E in national interest that Parliament should make laws with respect to any of
the matters enumerated in the State list [List II of Seventh Schedule read with
Article 246], specified in the resolution, it shall be lawful for parliament to
make laws for the whole or any part of the territory of India with respect to
that matter while the resolution remains in force. Article 249 clause (2) and
F (3) specify the limitations on the enforcement of this provision. Article 251
when read with Article 249 provides that in case of inconsistency between
a law made by parliament under Article 249 and a law made by a State
legislature, the Union law will prevail to the extent of such inconsistency or
'repugnancy'. In effect this provision permits the Rajya Sabha to encroach
upon the specified legislative competence of a state legislature by declaring
G a matter to be of national importance. Though it may have been incorporated
as a safeguard in the original constitutional scheme, this power allows the
Union government to interfere with the functioning of a State government,
which is most often prompted by the existence of opposing party-affiliations
at the Central and state level. This bias towards 'Unitary power' under nonnal
H circumstances is not seen either in U.S.A. or Canada.
KULDIPNAYAR v. U.0.1 (SABHARWAL,CJ.] 47
Federalism A
A lot of energy has been devoted on behalf of the petitioners to build
up a case that the Constitution of India is federal. The nature of Federalism
in Indian Constitution is no longer res integra.

There can be no quarrel with the proposition that Indian model is B
broadly based on federal form of governance. Answering the criticism of the
tilt towards the Centre, Shri T.T. Krishnamachari, during debates in the
,> Constituent Assembly on the Draft Constitution, had stated as follows:

"Sir, I would like to go into a few fundamental objections because as
I said it would not be right for us to leave these criticism C.
uncontroverted. Let me take up a matter which is perhaps partly
theoretical but one which has a validity so far as the average man in
this country is concerned. Are we framing a unitary Constitution? Is
this Constitution centralizing power in Delhi? Is there any way provided
by means of which the position of people in various areas could be D
safeguarded, their voices heard in regard to matters of their local
administration? I think it is a very big charge to make that this
Constitution is not a federal Constitution, and that it is a unitary one.
We should not forget that this question that the Indian Constitution
should be a federal one has been settled by our Leader who is no
more with us, in the Round Table Conference in London eighteen E
years back."

"I would ask my honourable friend to apply a very simple test so far
as this Constitution is concerned to find out whether it is federal or
not. The simple question I have got from the German school of
political philosophy is that the first criterion is that the State must F
exercise compulsive power in the enforcement of a given political
).
order, the second is that these powers must be regularly exercised
over all the inhabitants of a given territory; and the third is the most
important and that is that the activity of the State must not be
completely circumscribed by orders handed down for execution by the G
superior unit. The important words are 'must not be completely
circumscribed', which envisages some powers of the State are bound
to be circumscribed by the exercise of federal authority. Having all
these factors in view, I will urge that our Constitution is a federal
Constitution. I urge that our Constitution is one in which we have
given power to the Units which are both substantial and significant H
48 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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

(emphasis supplied)

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

(emphasis supplied)

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

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

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

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

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

"Strictly speaking, our Constitution is not of a federal character where
....
l.b, separate, independent and sovereign State could be said to have H
50 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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

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

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

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

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

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

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

(emphasis supplied)

Justice B.P. Jeevan Reddy, writing separate Judgment (for himself and F
on behalf of S.C. Agrawal, J.) concluded in Paragraph 276 thus:
).
"The fact that under the scheme of our Constitution, greater power
is conferred upon the Centre vis-a-vis the States does not mean that
States are mere appendages of the Centre. Within the sphere allotted
to them, States are supreme. The Centre cannot tamper with their G
powers. More particularly, the Courts should not adopt an approach,
an interpretation, which has the effect of or tends to have the effect
of whiitling down the powers reserved to the States . ..... must put the
Court on guard against ~.ny conscious whittling down of the powers
of the States. Let it be said that the federalism in the Indian H
52 SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R.
t( ~

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

(emphasis supplied)

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

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

(emphasis supplied)

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

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

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

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

(emphasis supplied)

True, the federal principle is dominant in our Constitution and that
principle is one of its basic features, but, it is also equally true that federalism D
under Indian Constitution leans in favour of a strong centre, a feature that
militates against the concept of strong federalism. Some of the provisions that
.~
can be referred to in this context include the power of the Union to deal with
extraordinary situations such as during the emergency (Article _250, 252, 253)
and in the event of a proclamation being issued under Article 356 that the
E
governance of a State cannot be carried on in accordance with the provisions
of the Constitution; the power of the Parliament to legislate with respect to
a matter in the State List in the national interest in case there is a resolution
of the Council of States supported by prescribed majority (Article 249); the
power of the Parliament to provide for creation and regulation of All India
Services common to Union and the States in case there is a Resolution of the F
Council of States supported by not less than two-third majority (Article 312);
) there is only one citizenship namely the citizenship of India; and, perhaps
::IP
most important, the power of the Parliament in relation to the formation of new
States and alteration of areas, boundaries or names of States (Article 3).
G
This Court in the case of Staie of West Bengal v. Union of India, [l 964]
SCR 371 at 396, has observed that our Constitution is not of a true or a
traditional pattern of federation. In a similar vein are other judgments of the
Court, like State of Rajasthan & Ors. v. Union of India Etc. Etc., (1978] l SCR
I at pages 4G and 33F, that speak of the conspectus of the provisions that
whatever appearance of a federal structure our Constitution may have, judging H
' (}>
54 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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

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

The Commission on Inter-State Relations (Sarkaria Commission), in its
Report has specifically said that the Constitution as emerged from the
C Constituent Assembly in 1949, has important federal features but it cannot be
federal in the classical sense. It was not the result of an agreement to join
the federation, unlike the United States. There is no dual citizenship, i.e., of
the Union and the States. (Pages 8 and 9 of the Report of the Commission
on Centre-State Relations, Part-I, and paragraphs 1.3.04, 1.3.05, 1.3.06, 1.3.07].

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

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

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

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

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

•• But then, India is not a federal State in the traditional sense of the term.
There can be no doubt as to the fact, and this is of utmost significance for
purposes at hand, that in the context of India, the principle of federalism is
not territory related. This is evident from the fact that India is not a true E
federation formed by agreement between various States and territorially it is
open to the Central Government under Article 3 of the Constitution, not only
to change the boundaries, but even to extinguish a State (State of West
Bengal v. Union of India, [1964] 1 SCR 371). Further, when it comes to
exercising powers, they are weighed heavily in favour of the Centre, so much
F
so that various descriptions have been used to describe India such as a
pseudo-federation or quasi-federation in an amphibian form, etc.
,,>.
:=-- The Constitution provides for the bicameral legislature at the centre.
The House of the People is elected directly by the people. The Council of
States is elected by the Members of the Legislative assemblies of the States. G
It is the electorate in every State who are in the best position to decide who
will represent the interests of the State, whether as members of the lower
house or the upper house.

It is no part of Federal principle that the representatives of the States
(p must belong to that State. There is no such principle discernible as an H
56 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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

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

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

D Since then, many nations have adopted a bicameral fonn of central
legislature, even though some of them are not federations. On account of
Colonial tu le, these British institutions of parliamentary governance were also
embodied in the British North America Act, 1867 by which the Dominion of
Canada came into existence and The Constitution of India, 1950. In Canada,
the Parliament consists of the House of Commons and the Senate ('Upper
E House'). Likewise the Parliament of the Union of India consists of the Lok
Sabha (House of the People) and the Rajya Sabha (Council of States, which
is the Upper House). In terms of their functions as agencies of representative
democracies, the Lower Houses in the Legislatures of India, U.S.A and Canada-
namely the Lok Sabha, the House of Representatives and the House of
F Commons broadly follow the same system of composition. As of now, Members
of the Lower Houses are elected from pre-designated constituencies through
universal adult suffrage. The demarcation of these constituencies is in
accordance with distribution of population, so as to accord equity in the
value of each vote throughout the territory of the country. However, with the
existence of constituent states of varying areas and populations, the
G representation accorded to these states in the Lower House becomes highly
unequal. Hence, the composition of the Upper House has become an indicator
of federalism, so as to more adequately reflect the interests of the constituent
states and ensure a mechanism of checks and balances against the exercise
of power by central authorities that might affect the interests of the constituent
H states.
•
>
KULDIPNAY AR v. U.0.1. (SABHARWAL.CJ.] 57
~
)' However, the area of focus is to analyse the role of second chambers A
in the context of centre-state relations i.e. embodiment of different degrees of
federalism. This motive also illustrates the choice of the Indian Rajya Sabha,
the U.S. Senate and the Canadian Senate, since these three nations are
;,-· notable examples of working federations over large territories and populations
which have a high degree of diversity at the same time. The chief criterion
of comparison will be the varying profile of representation accorded to the
B
constituents units by the methods of composition and the differences in the
powers vested with the 'Upper houses' in the constitutional scheme of the
countries. Many Political theorists and Constitutional experts are of the opinion
~
.,, that in the contemporary context, 'Second Chambers' are losing their intended
characteristics of effectively representing the interests of states and are c
increasingly becoming 'national' institutions on account of more economic,
social and political affinity developing between states. Hence, a comparative
study of the working of bicameralism can assist the understanding of such
dynamics within a Federal system of governance.

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

= 'p
extra-legislative powers, which distinguish it from Second Chambers in other H
58 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

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

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

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

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

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

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

In India, Article 80 of the Constitution of India prescribes the F
composition of the Rajya Sabha. The maximum strength of the house is 250
members, out of which up to 238 members are the elected representatives of
the states and the Union territories (Article 80(1) (b)], and 12 members are
nominated by the President as representatives of non-political fields like
literature, science, art and social services [Articles 80( 1)(a) and 80(3)]. The
members from the states are elected by the elected members of the respective
G
State legislative assemblies as per the system of Proportional representation
by means of the single transferable vote [Article 80(4)]. The manner of
election for representatives from Union territories has been left to prescription
by parliament (Article 80(5)]. The allocation of seats for the various states and
,.,,,. union territories of the Indian Union is enumerated in the Fourth schedule to H
60 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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

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

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

KULDIPNAY AR v. U.O.L [SABHARWAL. Cl] 61
;~ the advice of the Prime Minister. The membership of the house as of today A
is I05 and it accords equivalent representation to designated regions and not
necessarily the constituent provinces and territories. The Prime Minister's
decision regarding appointment of senators does not require the approval of
anyone else and is not subject to review. The qualifications for membership
are an age requirement of 30 years, citizenship of the Dominion of Canada by
natural birth or naturalization and residency within the province from where
B
appointment is sought. In the case of Quebec, appointees must be residents
of the electoral district for which they are appointed. Once appointed, senators
p hold office until the age of 75 unless they miss two consecutive sessions of
Parliament Until 1965, they used to hold office for life. Even though the
Canadian senate is seen as entirely dependent on the Executive owing to c
party affiliations in appointments, the provision for holding terms till the age
of75 does theoretically allow for the possibility of the Opposition to command
a majority in the Senate and thereby disagree with the Lower House or the
executive, since the members of the L:iwer House are elected for 5 year terms.

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

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

Canada opted for a variation of the equivalent representation for
designated regions and hence the representation accorded to provinces and G
territories was loosely based on population distribution. However, demographic
changes over many decades impact the actual representation accorded to
each territory. Furthermore, the ncminal system of appointment to the Canadian
Senate creates the position that the will of the Senate will ordinarily flow with
.....,. the federal executive.
I~
H
62 SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R.

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

G It can be safely said that as long as the State has a right to be
represented in the Council of States by its chosen representatives, who are
citizens of the country, it cannot be said that federalism is affected. It cannot
be said that residential requirement for membership to the Upper House is an
essential basic feature of all Federal Constitutions. Hence, if the Indian
H Parliament, in its wisdom has chosen not to require residential qualification,
...
.-
,t

KULDIPNAYAR v. U.0.1.[SABHARWAL,CJ.] 63
it would definitely not violate the basic feature of Federalism, Our Constitution A
does not cease to be a federal constitution simply because a Rajya Sabha
Member does not "ordinarily reside" in the State from which he is elected.·

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

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

This Court in above fact situation held and observed as under :-
G
"When the constitutional provision stipulates that an ordinance
promulgated by the Governor to meet an emergent situation shall
cease to be in operation · at the expiration of six weeks from the
reassembly of the legislature and the government if it wishes the
provisions of the ordinance to be continued in fore~ beyond the H
• period of six weeks has to go before the legislature which is the
•
64 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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

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

The learned counsel next referred to L. Chandra Kumar v. Union of
India & Ors., [1997] 3 SCC 261 (7 Judges) (Paragraph 17 page 277 and
Paragraph 99 at p./311 )], in which case not only was the Constitutional
D amendment depriving High Court of its jurisdiction under Article 226 and 227
(from decisions of Administrative Tribunal) struck down on the ground that
taking away judicial review from the High Courts violated the basic structure
doctrine but even Section 28 of the Administrative Tribunal Act 1985, providing
for "exclusion of jurisdiction of Courts except the Supreme Court under
E Article 136 of Constitution" was also struck down.
In the above context, reference has also been made to Indra Sawhney
v. Union of India & Ors., [2000] I SCC 168 at page 202 (Paragraph 65). A
Bench of 3 Judges of this Court expressly held in that case that a State
enacted law (Kerala Act on creamy layer) violated the doctrine of basic
F structure. The question before the Court essentially was as to whether the
right to equality guaranteed by the Constitution and the law declared by the
Supreme Court could be set at naught by a legislative enactment. The issues
raised also concerned the legislative competence of the State Legislature. In
paragraph 65 of the judgment, it was observed as under:-
G
" .... Parliament and the legislature ;n this country cannot transgress
the basic feature of the Constitutio•1, namely, the principle of equality
enshrined in Article I4 of which Article 16( I) is a facet. Whether 1he
creamy layer is not excluded or whether forward castes get included
in the list of backward classes, the position will be the same, namely,
H that there will be a breach not only of Article 14 but of the basic •
structure of the Constitution. The non-exclusion of the creamy layer •
'
,.. KULDIPNAYAR v. U.0.1. [SABHARWAL,CJ.] 65
or the inclusion offorward castes in the list of backward classes will, A
therefore, be totally illegal. Such an illegality offending the root of the
Constitution of India cannot be allowed to be perpetuated even by
constitutional amendment. The Kerala Legislature is, therefore, least
competent to perpetuate such an illegal discrimination. What even
Parliament cannot do, the Kerala Legislature cannot achieve."
B
It is well settled that legislation can be declared invalid or unconstitutional
only on two grounds namely, (i) lack of legislative competence and (ii) violation
of any fundamental rights or any provision of the Constitution (See Smt.
Indira Nehru Gandhi v. Raj Narain, [I975] Supp SCC I). In other cases relied
upon by Mr. Sachar where observations have been made about a statute
being contrary to basic structure, the question was neither raised nor
c
considered that basic structure principle for invalidation is available only for
constitutional amendments and not for statutes.

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

(emphasis supplied)"

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

• "The contentions of the respondent that the Amendment Acts of 1974
and 1975 are subject to basic features or basic structure or basic
framework fails on two grounds. First, legislative measures are not
subject to the theory of basic features or basic structure or basic
framework. Second, the majority view in Kesavananda Bharati's case G
(supra) is that the Twenty-ninth Amendment which put the two statutes
in the Ninth Schedule and Article 31-B is not open to challenge on
the ground of either damage to o_r destruction of basic features, basic
str_ucture or basic fra·mework or on the ground of vil)lation of
i..
. ,,;.
H
:>~
i
...
•
66 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A fundamental rights."

(emphasis supplied)

In same case, K.K. Mathew, J. in Paragraph 345 of his separate judgment
ruled as under: -
B
"I think the inhibition to destroy or damage the basic structure by an
amendment of the Constitution flows from the limitation on the power
of amendment under Article 368 read into it by the majority in Bharati 's
case (supra) because of their assumption that there are certain
fundamental features in the Constitution which its makers intended to
c remain there in perpetuity. But I do not find any such inhibition so
far as the power of Parliament or State Legislatures to pass laws is
concerned. Articles 245 and 246 give the power and also provide
the limitation upon the power of these organs to pass laws. ft is only
the specific provisions enacted in the Constitution which could
operate m limitation upon that power. The preamble, though a part
D of the Constitution, is neither a source of power nor a limitation upon
that power. The preamble sets out the ideological aspirations of the
people. The essential features of the great concepts set out in the
preamble are delineated in the various provisions of the Constitution.
It is these specific provisions in the body of the Constitution which
E determine the type of democracy which the founders of that instrument
established; the quality and nature of justice, political, social and
economic which was their desideratum, the content ofliberty of thought
and expression which they entrenched in that document, the scope of
equality of status and of opportunity which they enshrined in it.
These specific provisions .:!nacted in the Constitution alone can
F determine the basic structure of the Constitution as established. These
specific provisions, either separately or in combination determine the
content of the great concepts set out in the preamble. It is impossible
to spin out any concrete concept of basic structure out of the gossamer
concepts set out in the preamble. The specific provisions of the
G Constitution are the stuff from which the basic structure has to be
woven. The argument of Cou11sel fur the respondent proceeded on
the assumption that there are certain norms for free and fair election
in' an ideal democracy and the law laid down by Parliament or State
Legislatures must be tested on those norms and, if found wanting,
must be struck down. The norms of election set out by Parliament or .....
H
KULDIPNA YAR v. U.0.1. (SABHAR WAL, CJ.] 67
"'. State Legislatures tested in the light of the provisions of the A
Constitution or necessary implications therefrom constitute the law of
the land. That law cannot be subject to any other test, like the test
of free and fair election in an ideal democracy."

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

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

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

(emphasis supplied)

In Paragraph 692, he would rule as under: -
,,, .J,
H
~
68 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A 'There is 1;0 paradox, because certain limitations operate upo!1 the
higher power for the reason that it is a higher power. A constitutional
amendment has to be passed by a special majority and certain such
amendments have to be ratified by the legislatures of not less than
one-half of the States as provided by Article 368(2). An ordinary
legislation can be passed by a simple majority. The two powers,
B though species of the same genus, operate in different fields and are
therefore subject to different limitations."

(emphasis supplied) 4

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

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

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

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

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

The doctrine of 'Basic Feature' in the context of our Constitution, thus,
H does not apply to ordinary legislation which has only a dual criteria to meet,
KULDIPNAYAR v. U.0.1. [SABHARWAL,CJ.] 69
,,,.
namely: A
(i) It should relate to a matter within its competence;
..
(ii) It should not be void under Article 13 as being an unreasonable
restriction on a fundamental right or as being repugnant to an
express constitutional prohibition.
B
Reference can also be made in this respect to Public Services Tribunal
Bar Association v. State ofU.P. & Anr., [2003] 4 SCC 104 and State ofAndhra
b Pradesh and Ors. v. McDowell & Company & Ors., [1996] 3 SCC 709 .
•
The basic structure theory imposes limitation on the power of the
Parliament to amend the Constitution. An amendment to the Constitution c
under Article 368 could be challenged on the ground of violation of the basic
structure of the Constitution. An ordinary legislation cannot be so challenged.
The challenge to a law made, within its legislative competence, by Parliament
on the ground of violation of the basic structure of the Constitution is thus
not available to the petitioners. D
As stated above, 'residence' is not the constitutional requirement and,
!~
therefore, the question of violation of basic structure does not arise.

Argumenl of conlempormy legislation and Constitutional Scheme
E
Mr. Nariman further submitted that the Constitution and the
Representation of People Act, 1951 are to be read as an "integral scheme".
In this context, reference was made to the fact that the Provisional Parliament
that passed the Representation of People Act, 1950 and the Representation
of People Act, 1951 was the same as the Constituent body that had passed
and adopted the Constitution. F
µ.
In support of the contention about the integrated scheme of 'Election',
>'b Mr. Nariman would first refer to N.P. Ponnuswami v. Returning Officer,
Namakkal c;onstituency & Ors., AIR (1952) SC 64: [I 952] SCR 218. In that
case, the appellant had challenged the dismissal by the High Court of his
petition under Article 226 of the Constitution praying for a writ of certiorari G
to quash the order of the Returning Officer rejecting his nomination paper in
an election, on the ground that it had no jurisdiction to interfere with the order
oi the Returning Officer by reason of the provisions of Article 329(b) of the
Constitution.
- ,.1
H
70 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.
. "
A Justice Fazal Ali, speaking for the Bench, observed as under:

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

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

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

(Emphasis supplied) .....
.:;-
In Mohinder Singh Gill & Anr. v. The Chief Election Commissioner,
New Delhi & Ors., [1978] I SCC 405 (427)], a similar view was taken in the
G following words: -
"The paramount policy of the Constitution-framers in declaring that
no election shall be called in question except the way it is provided
for in Article 329(b) and the Representation of the People Act, 1951,
compels us to read, as Fazal Ali J. did in Ponnuswami, the Constitution
H ... .,
KULDIPNA YAR v. U.0.1. (SABHARWAL, CJ.) 71
and the Act together as an integral scheme. The reason for A
postponement of election litigation to the post-election stage is that
elections shall not unduly be protracted or obstructed. The speed and
promptitude in getting due representation for the electors in the
legislative bodies is the real reason suggested in the course of judgment.

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

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

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

Mr. Narinian submitted that the same Parliamentary body which passed
the Constitution, acting as the Provisional Parliament under Article 379 (since
repealed), also passed the law with regard to who was to be the representative
of a State in the Council of States. He pointed out that Section 3 of the RP F
Act 1951, as originally enacted, while prescribing "Qualifications for
membership of the Council of States" had made it essential that the person
offering himself to be chosen as a representative of any State in the Council
of States must be "an elector" for a Parliamentary .Constituency "in that
State", which.principle applied uniformly to Part A or Part B States (other than
the State of Jammu & Kashmir). In the original enactment, there was a separate G
arrangement for Part C States, some of which were put in different groups to
provide for unified constituencies for returning a common representative (for
the State or the Group) to the Council of States, though the qualification in
the nature of compulsory status of elector "in that State" would apply there
also, with some modification here and there, in that, generally the person was H
'
72 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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

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

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

(emphasis supplied)

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

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

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

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

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

(2) Regulations made under the Act provide a parliamentary or
administrative contemporanea expositio of the Act but do not
decide or control its meaning to allow this would be to substitute B
the rule-making authority or the judges as interpreter and would
disregard the possibility that the regulation relied on was
misconceived or ultra vires.
(3) Regulations which are consistent with a certain interpretation of
the Act tend to confirm that interpretation. C
(4) Where the Act provides a framework built on by
contemporaneously prepared regulations, the latter may be a
reliable guide to the meaning of the former.
(5) The regulations are a clear guide, and may be decisive, when D
they are made in pursuance of a power to modify the Act,
particularly if they come into operation on the same day as the
Act which they modify.
(6) Clear guidance may also be obtained from regulations which are
to have effect as if enacted in the parent Act." E
Mr. Rao also placed reliance on British Amusements Catering Trades
Association v. Westminister City Council, [ 1988] 1 ALL ER 740, 745 d.e.
(H.L.)], a judgment that is said to have followed the case referred to in the
preceding Paragraph.
F
In Desh Bandhu Gupta and Co. & Ors. v. Delhi Stock Exchange
Association Ltd, [1979] 4 SCC 565, this court held as under:
t •
... "The principle of contemporanea expositio (interpreting a statute or
any other document by reference to the exposition it has received
from contemporary authority) can be invoked though the same will G
not always be decisive of the question of construction (Maxwe!l 12th
ed. P. 268). In Crawford on Statutory Construction (1940 ed.) in
paragraph 219 (at pp. 393-395) it has been stated that administrative
construction (i.e. contemporaneous construction placed by
administrative or executive officers charged with executing a statute) H
generally should be clearly wrong before it is overturned; such a
'"'
74 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.
'
A construction, commonly referred to as practical construction, although • •
not controlling, is nevertheless entitled to considerable weight; it is
highly persuasive. In Baleshwar Bagarti v. Bhagirathi Dass, !LR 35
Cal. 701 at 713 the principle, which was reiterated in Mathura Mohan
Saha v. Ram Kumar Saha, ILR 43 Cal. 790: AIR 1916 Cal 136 has been
B stated by Mookerjee, J., thus:

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

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

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

In State of Tamil Nadu v. Mis. Hind Stone & Ors., [1981] 2 SCC 205,
it was held as under:
F "The Mines and Minerals (Regulation and Development) Act is a law
enacted by Parliament and declared by Parliament to be expedient in
the public interest. Rule 8-C has been made by the State Government
by notification in the official Gazette, pursuant to the power conferred
upon it by Section 15 of the Act. A Statutory rule, while ever
' 1
..
G subordinate to the parent statute, is otherwise, to be treated as part
of the statute and as effective. "Rules made under the statute must
be treated for all purposes of construction or obligation exactly as if
they were in the act and are to be of the same effect as if contained
in the Act and are to be, judicially noticed for all purposes of
construction or obligation": (State of U.P. v. Babu Ram Upadhya,
H
[1961] 2 SCR 679, 702; see also Maxwell: INTERPRETATION OF
••
KULOIPNA YAR v. U.0.1. [SABHARWAL, CJ.] 75
STATUTES, I Ith Edn. pp. 49-50). So, statutory rules made pursuant A
to the power entrusted by Parliament are law made by Parliament
within the meaning of Article 302 of the Constitution."

In Commissioner ofIncome Tax, Jullundur v. Ajanta Electricals, Punjab,
[ 1995] 4 sec 182, it was ruled thus:
B
"Though the rule cannot affect, control or derogate from the section
of the Act, so long as it does not have that effect, it has to be
regarded as having the same force as the section of the Act."
'~
The submission, thus, is that the principle of contemporanea expositio
is relevant for interpreting the words "the representatives of each State" in c
Article 80(4) of the Constitution with reference to contemporary legislation
made by the Constituent Assembly itself acting as provisional Parliament just
as subordinate legislation is used in order to construe the parent Act.

But then, the fallacy of the above approach to the subject lies in the
fact that legislation by the provisional Parliament did not produce a D
constitutional rule. It does not have the sanctity or normative value of
Constitutional Law. When the Act of 19 51 was debated, no one argued that
the residence qualification had already been decided upon by the Constituent
Assembly and, therefore, no debate should take place. The difference between
the original and derived power is the basis of the doctrine of basic structure. E

The principle of "contemporanea expositio ', is totally irrelevant if not
misleading for present purposes. If the Constitution had used an ambiguous
expression, which called for interpretation, the manner in which the Constitution
had been interpreted soon after it was enacted would be a useful aid to
interpretation. No such question arises in this case. Indeed, the Parliament F
had earlier provided for residential qualification. But it decided to repeal it
through the impugned amendment. Both times, that is while originally enacting
the RP Act in 1951 and while amending it in 2003, the Parliament was acting
within its legislative competence. It is true that the provisional Parliament in
1951 did prescribe residence inside the State as a qualification for Membership G
of the Council of States. But, it also needs to be borne in mind that the same
Parliament in its character of a Constituent Assembly had refused to exalt the
qualification (including that of residence) to a Constitutional requirement and
rather showed consciousness that the provision for qualifications might need
to be revisited from time to time and, therefore, finding it inadvisable to
~ . prescribe the same in the Constitution itself. H
~ .;.
41

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

A The provision of residence existed, prior to impugned amendment, in a •
Parliamentary law, i.e., the Representation of the People Act, 1951 (and not
the Constitution). There is no express provision in the Constitution itself
requiring residence as a qualification. It cannot be said that amendment of the
Act to remove what the Constitution itself did not provide for, is
unconstitutional.
B
It has been argued that it was the Provisional Parliament, which
succeeded the Constituent Assembly, that had passed the RP Act, 1951.
However, if that reasoning were to be accepted, it would not mean that all the .q
laws passed by the Provisional Parliament enjoy the same status as the
c Constitution or some such special status. This would be neither a healthy nor
a permissible approach. All enactments passed by provisional Parliament,
including the RP Act 1951, are laws like any other law made by Parliament.
Accordingly, each of them is subject to power of Parliament to bring about
amendments like any other statute. Over the years, there have been several
amendments to the RP Act, 1950 and RP Act, 1951. If the argument of the
D petitioner were to be correct, all the amendments made so far in these Acts
would have required Constitutional amendments.

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

Restrictions under Article 368

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

-
G should follow, as a necessary corollary, that the change made in Section 3,
RP Act, 1951 is one that no longer ensures, by Parliamentary law, the
representation of States in Parliament, or in any case one that makes a change
in the existing law, and thus an amendment that could not be effectuated
simply by amending Section 3 of the RP Act, 1951.
H Article 368 relates to power of Parliament to amend the Constitution and ,et
"
KULDIPNAYAR v. U.0.1. [SABHARWAL,C.I.] 77
the procedure therefor. The Proviso in question puts limits on the power of _A
Parliament to amend the Constitution. Article 368(2), to the extent relevant,
reads as under: -

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

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

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

The above provision shows that subject to some conditions and
procedural requirements, the Parliament is competent to amend the Constitution
except, inter alia, in the event the amendment sought to be made, changes F
"the representation of States in Parliament". In that case, the amendment Bill
~·
would require, before presentation to the President for assent, ratification by
the Legislatures of not less than one half of "the States". A question thus
has been raised as to the scope of the expression "representation of the
States" occurring in Proviso (d) to Article 368 (2). G
The argument is without merit in the context in which it has been made.
The expression "representatives of States" as used in Article 80 and the
expression "representation of States" as used in proviso (d) of Article 368(2)
are not synonymous or employed in same sense. These expressions are
materially different and used in different context in the two provisions. This H
78 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

A is clear from the simple fact that Article 80 is talking of "representatives" of •
States in the Council of States while proviso (d) of Article 368(2) pertains to
"representation" of States in Parliament. The first provision is of limited
import while the latter has a wider connotation.

Article I, having declared in its sub-Article (I) that India "shall be a
B Union of States", provides through sub-Article (2) as under:-
"The States and the territories thereof shall be as specified in the First
Schedule."
< •

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

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

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

Article 4 thus also uses the expression "representation in Parliament".
G It specifically excludes such amendments as contemplated in Articles 2 and
3 from the requirements of the procedure prescribed in Article 368 for
Constitutional amendments. The expression "representation of States in
Parliament", as used in Proviso (d) to Article 368(2), therefore, cannot be of
any use to the case of the petitioners.

H Article 80(1) prescribes in clause (b) that, besides the 12 members
KULDIPNAYAR v. U.0.1. [SABHARW AL, CJ.] 79
nominated by the President, the Council of States shall consist of not more A
than 238 "representatives" of States and Union Territories. If an amendment
were to increase or decrease this composition, it would result in change in
the ratio of representation of States in Parliament.

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

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

The argument based on the provision of the Acts relating to
Reorganization of States does not carry the matter further at all. Obviously,
at the time of creation of new States, the existing members of the Council of
States had to be allocated to the old or new States. This was done in H
80 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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

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

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

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

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

KULDIPNAYAR v. U.O.l. [SABHARWAL.Cl] 81
The argument that the impugned amendment affects the "representation" A
of the States in the Council of States is not correct. The States still elect their
representatives to the Council of States through the elected members of their
respective legislative assemblies as provided in the Constitution. There was,
therefore, no need for a constitutional amendment as has been contended.

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

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

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

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

The word "elector" has been defined in Section 2 (e) of RP Act 1951 H
'
82 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

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

The above mentioned statutory provisions, according to Mr. Nariman,
unmistakably.show that the test of "ordinary residence" has been woven into
B the constitutional scheme as an essential qualification for membership of
either House of Parliament, which can be residence anywhere in India for
House of the People, but must be residence in the State one seeks to represent
in the Council of States, as required in Section 3 of the 1951 Act as it existed
till the impugned amendment brought about a qualitative change. ·
c Mr. Nariman contended that the impugned amendment has destroyed
the essential characteristic of the Council of States because a person who is
an elector, and so an ordinary resident, in any constituency in India, not
necessarily of the particular State can now be chosen to be a representative
of such State, only by virtue of being so elected to the Council of States by
D the Members of the Legislative Assembly of such State. According to him,
the need for a Second Chamber viz. the Council of States has become
redundant, in that it now merely duplicates the House of the People, since
a person is qualified to be chosen as a representative of any State in the
Council of States if he is an elector for a Parliamentary constituency in that
State or in any other State.
E
He further argued that as a result of the impugned amendment, the
person elected to the Council of States, if he is at all "representative" of
anyone, he is only a representative of the State Assembly that elected him
and not a "representative" of the State, as he was required to be under Article
80. The intendment of the Constitution that he should be a representative of
F the State is required to be reflected in some statutory requirement as to
qualification qua the person elected and the State, be it birth, residence for
some period in the past or at present, or ordinary residence. The law enacted
by Parliament had to prescribe some connection between the person standing
for election and the State that he is to represent in the Council of States,
G which is now missing.
...
These arguments do not appeal to us. Article 79 leaves no doubt about
the fact that House of the People and the Council of States are both "Houses"
of Parliament. The names given to the two Houses are proper nouns and do
not spell out any right or obligation, much less limitations on Parliament's
H legislative power available to it under Article 84(c). •
KULDIPNA YAR v. U.0.1. [SABHARWAL, CJ.] 83
Parity in the matter of qualification to the ·extent concerning residence A
of a person seeking to be elected as member of either House does not make
one House duplicate of the other. Their role, functions, powers or prerogatives,
especially in the matter of legislation, remain unchanged.

Mr. Nariman also urged that Article 80 of the Constitution (Composition
of the Council of States) be read in contrast of Article 81 (Composition of the B
House of the People). He was at pains to point out that under Article 80, the
Council of States must consist of "representatives" of the States and Union
Territories and that it is only the representatives of "each State" in the

. • Council of States who are to be elected by the elected Members of the
Legislative Assembly of the State [Article 80(4)]. On the other hand, under
c
Article 81, the House of the People consists of "members" chosen by direct
election from the territorial constituencies in the State, i.e. chosen by the
electors in one of the Parliamentary Constituencies in India.
-<

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

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

It has been argued that the principles underlying "the_ Hou~ of the
G
People" are evident from Articles 79 and 81. It is a House of the"People of
India as a whole. Its members are chosen by direct election from territurial
constituencies in the States. To become a member one has to be an'Indian
first. A non-Indian cannot represent the people of India. Only an elector in
; any part of India will have the capacity to represent the people of India. H
~
·•
84 SUPREME COURT REPORTS (2006) SUPP. 5 S.C.R.

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

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

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

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

E "In interpreting the constitutional provisions in this area the Court
should adopt a construction which strengthens the foundational
features and the basic structure of the Constitution."
-
The following observations made in paragraph 47 in P. JI. Narasimha
Rao 's case (supra) have been relied upon:
F
"As mentioned earlier, the object of the immunity conferred under
Article 105(2) is to ensure the independence of the individual legislators.
Such independence is necessary for healthy functioning of the system
of parliamentary democracy adopted in the Constitution. Parliamentary '-
democracy is a part of the basic structure of the Constitution. An
G interp~~tation of the provisions of Article 105(2) which would enable
a Mem·b~r of Parliament to claim immunity from prosecution in a
cr1minal court for an offence of bribery in connection with anything
said by him or a vote given by him in Parliament or any committee
thereof and thereby place such Members above the law would not
only be repugnant to healthy functioning of parliamentary democracy
H •.
KULDIPNAYAR v. U.0.1. [SABHARWAL,C.I.] 85
but would also be subversive of the rule of law which is also an A
essential part of the basic structure of the Constitution. It is settled
law that in interpreting the constitutiona) provisions the court should
adopt a construction which strengthens the foundational features and
the basic structure of the Constitution. (See: Sub-Commiltee on
Judicial Accouniabili(v v. Union of India, [ 1991] 4 sec 699 sec at B
p. 719.)"

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

The above mentioned argument to the extent founded on the principle
of basic structure need not detain us any further as it is the same argument
as dealt with in the context of federal structure, albeit with a slightly different
F
shade. Moreover, the link factor is retained by the impugned amendments
inasmuch as the candidate for the election to the Council of States is now
required to be an elector for Parliamentary constituency. Therefore, the linking
factor is made broad based.
G
Article 80 shows that the Council of States consists of 12 Members
nominated by the President and 238 representatives of the States and Union
Territorie~ The representatives fill the seats in accordance with Article 80(2).
Both, the membt:rs nominated by the President and the representatives elected
by the State Legislatures are collectively 'Members' of the Council of States,
as clearly flowing from Article 83. H
86 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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

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

Relevance of the word "Each"

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

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

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

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

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

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

Clause 4. - The abolition of Part C States as such and the establishment
, ,I H
88 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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

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

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

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

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

Person to have representative character before being elected

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

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

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

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

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

E It is further argued by the petitioners that the very fact that Article 80(4)
provides for election by the elected members of the Legislative Assembly of
the State coupled with the fact that in terms of Article 170, members of the
Legislative Assembly shall be those chosen by direct election from territorial
constituencies in the State and the further requirement that each one of them
is required to. be an elector for any Assembly constituency in the State in
F terms of Section 5 (c) of the RP Act, 195 l shows that Members of the Council
of States representing a State shall have the qualifications prescribed for \
Members of the Legislative Assembly. Both are representatives of the people; -c::
while Members of Legislative Assemblies (MLAs) are directly elected, members
of the Council of States are indirectly elected by the people of the State
G through their MLAs.
Section 5(c) of the RP Act, 1951 requires a person to be an elector for
an Assembly constituency in the State to be eligible to contest for a seat in
the Legislative Assembly. It is the argument of the petitioners that the capacity
to represent arises from being a registered voter for any Assembly constituency
H in the State. Therefore, to be able to represent a State, it is necessary that the •
'.

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

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

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

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

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

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

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

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

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

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

(Emphasis supplied)

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

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

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

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

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

"Authorities are certainly not wanting which indicate that courts
should interpret in a broad and generous spirit the document which F
contains the fundamental law of the land or the basic principles of its
Government. Nevertheless, the rule of "plain meaning" or '~literal"
interpretation, described in Maxwell's Interpretation of Statutes as
"the primary rule", could not be altogether abandoned today in
interpreting any document. Indeed, we find Lord Evershed, M.R., G
saying: "The length and detail of modern legislation, has undoubtedly
reinforced the claim of literal construction as the only safe rule". (See:
Maxwell on Interpretation ofStatutes, 12th Edn., p. 28.) It may be that
the great mass of modern legislation, a large part of which consists
of statutory rules, makes some departure from the literal rule of
interpretation more easily justifiable today than it was in the past. But, H
94 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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

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

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

We do not find any contradiction, ambiguity, or absurdity in the
H provisions of the law as a result of the impugned amendment. Even while
*
KULDIPNAYAR v. U.0.1. [SABHARWAL,C.f.] 95
construing the provisions of the Constitution and the RP Acts in the broadest A
or most generous manner, the rule of "plain meaning" or "literal" interpretation
compels us not to accept the contentions of the petitioners.

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

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

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

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

" ...... some articles of the Constitution and some sections of the Act
refer to seats in connection with election to the House of the People.
For instance, when Article 81 (2)(b) provides for the same ratio
throughout the State between the population of each constituency G
and the number of seats allotted to it, it does refer to seats, but in the
context the use of the word "seats" was inevitable. Similarly Article
84 which lays down the qualification for_ the members of parliament
begins by saying that a person shall not be qualified to be chosen
"to fill a seat" in Pariiament unless he satisfies the tests prescribed H
'.
96 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.
..
A by its clauses (a), (b) and (c). Here.again the expression "to till a seat"
had to be used in the context. The same comment can be made about
the use of the word "seat" in Articles 101(2) and in 330. There is no
doubt that when a candidate is duly elected from any constituency
~~&~ef~h~~~a~~~&~mw~~
representative of the said constituency; and so the expression "tilling
B
the seat" is naturally used whenever the context so requires."

(emphasis supplied)

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

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

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

Members of the municipalities and boards, graduates, teachers are
t
H required under Article 171 to elect a certain percentage of members of the
KULDIPNAYAR v. U.O.I. [SABHARWAL,CJ.) 97
.. Legislative Council. It is not necessary that the person elected must either be A
a member of the municipal board or a graduate or himself a teacher. The
electorate can elect whoever in their wisdom is considered most suited to be
a representative of theirs.

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

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

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

The question of "ordinarily resident" is relevant for preparation of
electoral rolls and nothing further. This is evident from bare reading of the
scheme of provisions contained in RP Act, 1950, in particular Sections l3D, 1 F
J 4, 15, 17, 18, 19 and 20. Electoral rolls for ·purposes of elections governed
by the RP Acts are prepared assembly-constituency wise under Section 15.
Section l 3D relates to the Electoral rolls for Parliamentary constituencies and
renders the electoral rolls for all assembly constituencies comprised within the
parliamentary constituency put together as the electoral roll for such G
. parliamentary constituency. Electoral rolls are prepared basically for assembly
constituencies and revised year-wise. A conjoint reading of Sections 17, 18,
19 and 20 shows that a person can get himself registered as voter once in
only one assembly constituency which must be the one within which he is
an ordinary resident.
H
98 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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

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

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

We agree with the submission that by definition, the word
F "representative" simply means a person chosen by the people or by the
elected Members of the Legislative Assembly to represent their several
interests in one of the Houses of Parliament. A person becomes a representative
only after he is chosen in the prescribed manner. He is not a representative
earlier. At best, he .can claim to be called a candidate or a potential
representative. The theory that before he becomes a representative he should
G have some nexus other than one prescribed by the law in force is not
-
palatable and not supported by any !aw or view taken in any case. ...
Panchayati Raj Amendment territorial link

Mr. Nariman has submitted that there is a constitutional recognition of
H the concept of territorial link of the members of the Council of States (as
KULDIPNA YAR v. U.0.1. (SABHARWAL. CJ.] 99
-~

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

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

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

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

The argument is found, on close scrutiny, to be devoid of merit for
several reasons. G
First and foremost, the provisions mentioned above are not exceptional
in relation to a member of the Council of States on account of his position
as a registered elector in any Panchayat or Municipal area in that State for
purposes of local bodies. They equally apply to the members of the House
. .J
of the People and the Legislative Assemblies (as indeed, the Legislative H
100 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

A Councils) of the State concerned.

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

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

Further, these provisions generally provide for the qualifications of
F various categories of persons, which happen to include the members of the
Council of States, to be representatives in a Panchayat or municipality, and
share in local self governance. Since the members of the Council of States
were one of the several sources being tapped for the purpose of providing for .
representation of different interest groups in the deliberative wing at the local
level, it was incumbent to lay down some method of selection.
G
Last, but not tne least, the provisions that have been referred are
Constitutional provisions. Even on the premise that in enacting them the
factor of registration as elector within n particular Panchayat or municipal
area was considered important in relation to the members of the Council of
States so as to give them the additional responsibility of representation in the
H local Panchayat or municipality, it cannot be said that these provisions add
. KULDIP NAY AR v. U.0.l. [SABHAR WAL CJ] 101

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

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

Concept of Residence to change with passage of time

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

The contention of the pet1t1oners is that the provision contained in
Section 3 of the RP Act, 1951, prior to the impugned amendment, provided E
for a reasonable nexus between a member of the Council of States and the
State from which he is elected, viz. the nexus on account of domicile. It has
been argued that the amendment doing away with the said provision i.e.
requirement of residence in the State, has the effect of snapping the rational
nexus necessary to fulfill the object of representation in the Council of States
having regard to the federal character of the Indian Union. F
. Mr. Nariman, in the course of his arguments, has referred to the
arrangement in Section 3 of the RP Act 1951, as originally enacted, as the
constitutional scheme. On this premise, he would argue that Parliament could
make a departure from this scheme only by providing some other criteria or G
link for determining the representative capacity of a prospective member of
the Council of States. He illustrated this by submitting that the test of "ordinary
residence", as inherent in Section 3 of the 1951 Act before its amendment,
could be modified by Parliament only so as to provide some other characteristic
of effective representation, viz. (i) born in the State, (ii) having property in
the State, (iii) philanthropic or charitable works done in the State, (iv) education H
102 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

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

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

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

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

Rajya Sabha resembles the American Senate insofar as it is a continuing
body. Rajya Sabha, however, differs from the US Senate insofar as its members
are not elected directly by the States and there is no equality of representation
F of the States. Rajya Sabha resembles the Australian Senate insofar as both are
based on the principle of rotation.
•
The point which we would like to emphasize here is that even in
countries where strict federalism exists, with the passage of time, the original
G role of the Senate of guarding interests of the States as political units has
largely disappeared. With globalization, the US Senate now functions as a
national institution rather than as a champion of local interests. This
tran~formation has taken place in US due to several factors such as direct
election of Senators by the people of a State, development of strong political
parties advocating national programmes and development of national
H integration, etc.
-
KULDIPNAYAR v. U.0.1. (SABHARWAL, CJ.] 103
Similarly, in India, after 1990, due to relaxation of central economic A
control, the conceptual and theoretical framework offederalism has undergone
a sea-change. The concepts of the words 'residence' and 'representative' are
not fixed concepts, therefore, they have to change with time. The constitutional
framers have kept that flexibility in mind, they have left it to the Parliament
to decide the qualification for membership of the Parliament and, while
deciding the qualification, the Parliament has to take into account the contextual B
scenario. There cannot be one uniform, consistent and internal definition or
connotation of these concepts. These concepts undergo changes with the
passage of time. They cannot be decided etymologically by reference to
dictionaries.

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

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

Sub-Sections (18)(3) and (4) protect the ordinary resident character of
an individual vis-a-vis the place where he would be ordinarily residing but
for official engagements. Sub-Section (IB) takes care of legislators' absence
from their respective constituencies in connection with responsibilities of the F
office they hold. Sub-Sections (3) and (4) pertain to compulsions of the
• service (in Armed forces or police or foreign posting in service under
,.. Government of India) to be at a place other than the one where one ordinarily
resides.
G
Sub-Sections (5) and (6) of Section 20 of RP Act, I 950 render the
declaration, in prescribed form, of a person about the place of his (and that
of his spouse) ordinary residence as sufficient proof, though subject to
determination, should a question be raised in such regard, under rules to be
framed under sub-Section (7).
·~
H
104 SUPREME COURT REPORTS (20061 SUPP. 5 S.C.R.

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

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

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

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

This Court would refrain from passing comment on the argument of the
Union of India that it is a matter of common knowledge that, before the
H impugned amendment was brought about, in the anxiety to secure good
...
KULDIPNAYAR v. U.O.l. [SABHARWAL, CJ.] 105

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

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

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

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

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

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

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

Absence of Justification Objects and Reasons

Another submission urged is that the Statement of Objects and Reasons
~
H
_)
106 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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

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

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

The petitioners further argue that the reasons given in affidavit in reply,
H
re=:
'-
KULDIP NAY AR v. U.O.l. [SABHARW AL CJ.] 107
by Union of India, to justify the impugned amendment for amending Section A
3 are different from the reasons given in the Statement of Objects and Reasons
for the Bill.

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

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

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

In Hari Prasad Mulshanker Trivedi v. VB. Raju (supra), relied upon by
the petitioners, this Court was concerned with the question whether the election
of respondent numbers 4 and 5 as members of the Council of States from the
State of Gujarat which was challenged by way of an election petition, was G
void on the ground that they were not ordinarily resident in the area covered
by any parliamentary constituency in the State of Gujarat and that their
names had been illegally entered in the electoral rolls of the respective
constituencies in Gujarat and as they were not 'electors' within the meaning
of Section 2( I)(e) of RP Act, 1951, they were not eligible to become candidates H
108 SUPREME COL'RT REPORTS (2006) SUPP. 5 S.C.R.

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

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

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

The above observations do not advance the case of the petitioners in
any manner. There may be a separate machinery available under the RP Act,
H 1950 to question and inquire into the correctness of the entry of the name of
KULDIPNAYAR v. U.0.1. (SABHARWAL,C.I.] 109
an individual in the electoral roll of a particular constituency, a remedy A
distinct from that of an election petition to challenge the election of the
candidate declared to have been returned in an election. but this fact cannot
~

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

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

In this context, what could be open to the Court is to examine whether
the difficulty in giving precise definition was not a bona fide reason in view
of the meaning of the expression given in Section 20 of the RP Act, l <150 or G
in the face of the dictionary meaning by which the said expression can be
generally understood. We have already found that the provision in question
leaves much to be desired and the guidance provided by law is deficient in
that it does not give a clear cut definition as to how the question of ordinary
residence of an individual is to be determined.
H
110 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

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

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

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

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

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

Union of India has submitted that the Parliamentary Debates and the
H
KULDIP NAY AR v. U.0.1. [SABHARWAL, CJ.] 111

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

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

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

Suffice it to say here that the submissions on both sides would show G
that the erstwhile arrangement in the law, that is the arrangement prior to the
impugned amendment, to determine the question as to whether a particular
person is ordinarily resident of a particular place or not had not worked
satisfactorily. The law does not give a clear concise definition or guidance in
this regard. The declaration oi the person concerned is generally taken as the
H
112 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

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

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

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

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

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

H The counsel for the petitioners have argued that the impugned
KULDIPNAYAR v. U.0.1. [SABHARWAL, CJ.] 113

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

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

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

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

1t is the contention of the petitioners that on the assumption that there G
was need for laying down a criteria other than the requirement of residence
in a particular State, some different or alternative qualification or method of
representation could have been prescribed; such as birth, education, carrying
on business or working for gain in the place for a period prescribed or doing
philanthropic or charitable work in a State by persons residing outside the
State. They argue that some roots or some connection had to be ensured to H
114 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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

But, it is the grievance of the petitioners that by the impugned
amendment a 'qualification' has been introduced which is not a qualification
at all, and which only means that anyone in India who is on the electoral roll
B 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
C 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
D 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
G 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
H 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 D
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 E
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
D 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
E 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
F 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
120 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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 A
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 B
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 B
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 C
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
124 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

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
B 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
C 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
D 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
E 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
126 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

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

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 C
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 D
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 E
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
130 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

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
D 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
E 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 B
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 C
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 D
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."

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

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
E 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
F 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 C
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 D
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 F
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 G
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
134 SUPREME COURT REPORTS (2006) SUPP. 5 S.C.R.

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
F 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
G 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.

H
-
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 A
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 B
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 C
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
138 SUPREME COURT REPORTS (2006) SUPP. 5 S.C.R.

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 A
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 B
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 E
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
F
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 G
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
140 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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
B 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
C 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
D 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 A
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 B
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 C
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
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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
D 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
E 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 E
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 F
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
F 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
G 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
D
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 E
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
F
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 G
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 A
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 B
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 C
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 D
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
B courts .....

(emphasis supplied)

After taking note of, amongst other provisions, Sections 94 and I28 of
C 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
D 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
E 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
F 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
G 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
H 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 A
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 B
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 C
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
C 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
D 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
E 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 D
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 E
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
F
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 G
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

-
~ I, '

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
H 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 A
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 B
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 C
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.

The factual matrix of the case would show that the appellant and the
first respondent were contesting candidates for the Kovalam Assembly Seat
in the State of Kerala. In the counting, the appellant was declared elected on F
ground that- he had obtained 21 votes in excess of the first respondent The
respondent moved the election petition mainly on ground of impersonation
and double voting by 19 specified voters. The High Court on examining the
evidence led by the parties on the issue found that certain .ballot papers
deserved being picked out from the respective ballot boxes to be rejected as
void. The ministerial work for the purpose was assigned to the Joint Registrar G
of the High Court On such exercise being undertaken, the election petitioner
entitled himself to be declared elected instead of the appellant

The High Court had located the void votes on the assumption that both
the contestants had bowed to the principle embodied in Section 64(4) of the
H
156 SUPREME COURT REPORTS (2006] SUPP. 5 S.C.R.

A RP Act for the sake of "purity of elections" principle and were willing partners
to have the void element identified and extricated from the voted lot. In this
view, rejecting the argument in appeal on breach of the principle of "secrecy
of ballot", this Court quoted from the law in S. Raghbir Singh Gill v. S.
Gurcharan Singh Tohra (supra) and observed in Paragraph 10 as under: -

B "The existence of the principle of "secrecy of ballot" cannot be denied.
It undoubtedly is an indispensable adjuncr offree and fair e/eclions.
The Act statlllorily assures a voter that he would not be compelled by
any authority to disclose as to for whom he has voted, so that he may
vote without fear or favour and free from any apprehension of its
disclosure against his will from his own lips. See in this connection
c Raghbir Singh Gill v. Gurcharan Singh Tohra. But this right of the
voter is not absolute. It must yield to the principle of "purity of
election" in larger public interest. The exercise of extrication of void
votes under Section 62(4) of the Act would not in any manner impinge
on the secrecy of ballot especially when void votes are those which
D have to be treated as no votes at all. "Secrecy of ballot" principle
presupposes a validly cast vote, the sanctity and sacrosanctity of
which must in all events be preserved. When it is talked of ensuring
free and fair elections it is meant elections held on the fundamental
foundation of purity and the "secrecy of ballot" as an allied vital
principle ....... "
E
(emphasis supplied)

It was thus reiterated by this Court in A. Neelalohithadasan Nadar v.
George Mascrene (supra) that out of the two competing principles, the purity
F of election principle must have its way and that the rule of secrecy cannot be
pressed into service "to suppress a wrong coming to light and to protect a
fraud on the election process."

The submission on the part of the Petitioner that a right to vote invariably
carries as an implied term, the right to vote in secrecy, is not wholly c'Orrect.
G Where the Constitution thought it fit to do so, it has itself provided for
elections by secret ballot, e.g., in case of election of the President of India
and the Vice-President of India. It is apt to point out that unlike silence on
the subject in the case of provisions of the Constitution concerning election
to fill the seats of the representatives of States in the Council of States,
Articles 55(3) and 66(1), that relate to the manner of election for the offices
H of the President and the Vice President respectively, provide for election by
KULDIPNA VAR v. U.0.1. [SABHARWAL. CJ.] 157
"secret ballot". A
Articles 55(3) and 66( l) of the Constitution provide for elections of the
President and the Vice President respectively, referring to voting by electoral
colleges, consisting of elected members of Parliament and Legislative
Assembly of each State for purposes of the former office and members of
both Houses of Parliament for the latter office. In both cases, it was felt B
necessary by the framers of the Constitution to provide that the voting at such
elections shall be by secret ballot through inclusion of the words "and the
.. voting at such election shall be by secret ballot." If the right to vote by itself
implies or postulates voting in secrecy, then Articles 55(3) and 66(1) would
not have required inclusion of such words. The necessity for including the C
said condition in the said Articles shows that "secret ballot" is not always
implied. It is not incorporated in the concept of voting by necessary
implication.

It follows that for 'secret ballot' to be the norm, it must be expressly
so provided. To read into Article 80(4) the requirement of a secret ballot D
would be to read the words "and the voting at such election shall be by secret
ballot" into the provision. To do so would be against every principle of
Constitutional and statutory construction.

In view of it not being the requirement of the Constitution, as in the
case of the President and the Vice President, it was permissible for Parliament E
when passing legislation like the Representation of the People Act to provide
otherwise, that is to choose between the system of secret ballot or open
ballot. Thus, from this angle, it is difficult to hold that there is Constitutional
infinnity in providing open ballot system for the Council of States.

Other arguments and Conclusion F

It has been argued by the petitioners that the Election Commission of
India, which under the Constitution has been given the plenary powers to
supervise the elections freely and fairly, had opposed the impugned amendment
of changing the secret'ballot system. Its view has, therefore, to be given G
proper weightage.

In this context, we would say that where the law on the subject is silent,
Article 324 is a reservoir of power for the Election Commission to act for the
avowed purpose of pursuing the goal of a free and fair election, and in this
view it also assumes the role of an adviser. But the power to make law under H
158 SUPREME COURT REPORTS [2006) SUPP. 5 S.C.R.

A Article 327 vests in the Parliament, which is supreme and so, not bound by
such advice. We would reject the argument by referring to what this Court
has already said in Mohinder Singh Gill (supra) and what. bears reiteration
here is that the limitations on the exercise of ''plenary character" of the
Election Commission include one to the effeci that "when Parliament or any
B State Legislature has made valid law relating to or in connection with elections,
the Commission, shall act in conformity with, not in violation of, such
provisions".

The submission of learned Counsel for the Writ Petitioners is that the
amendment violates the Constitution, which recognize the right to vote as a
C constitutional right, a facet of Article 19( I)(a) and the secret ballot preserving
this right. Further that secret ballot is an adjunct of free and fair election and
therefore, a part of a Parliamentary democracy and, therefore, taking away of
voting right by secret ballot affects the basic feature of the Constitution. They
argue that the impugned amendment was not called for.

D The amendment, according to the Counsel for the petitioners, seems to
proceed on the basis that it is only the leadership of the political parties that
is to be trusted rather than the average legislator, which view is not very
complimentar)i'.rto !he respect a:1d dignity of the legislators, besides being
factually unacceptable.

E In above context, the Counsel referred to the following words of Dr.
B.R. Ambedkar on the issue as to how the dignity of an individual should be
upheld inI tfl~ political system: -

"The second thing we must do is to observe the caution which John
Stuart Mill has given to all who are interested in the maintenance of
F democracy, namely, not "to lay their liberties at the feet of even a
,~reat man, or to trust him with powers which enable him to subvert
i~eir institutions". There is nothing wrong in being grateful to great
men who have rendered life-long services to the country. But there
are limits to gratefulness. As has been well said by the Irish patriot
G Daniel O'Connel, no man can be grateful at the cost of his honour,
no women can be grateful at the cost of her chastity and no nation
can be grateful at the cost of its liberty. This caution is far more
necessary in the case of India than in the case of any other country.
For in India, Bhakti or what may be called the path of devotion or
hero-worship, plays a part in its politics of any other country in the
H world. Bhakti in religion may be a road to the salvation of the soul.
KULDIP NAY AR v. U.0.I. [SABHAR WAL, CJ.] 159
But, in politics, Bhakti or hero-worship is a sure road to degradation A
and to eventual dictatorship."

On the other hand, the respondents supporting the impugned amendment
would argue that the Secrecy of voting had led to corruption and cross voting.
They would point out that voting on all issues in the legislatures, including
the Council of States and the Legislative Assemblies, is invariably open and B
not by secret ballot. The election of a representative is now at par with other
important matters. They would concede that the common man participating

-- in direct eler.tion as voter exercising his vote in a polling booth requires the
safeguard of secrecy. But elected members of legislative assemblies, as per
the learned Counsel, are expected to have stronger moral fiber and public C
courage.
I
The learned Attorney General pointed out that the Statement of Objects
and Reasons of the impugned Act refers to the Report of the Ethics Committee
of Parliament. The Ethics Committee in its First Report of 08th December
1998 had recommended that the issue relating to open ballot system for D
election to.the Rajya Sabha be examined. The issue again arose in the wake
of allegations of money power made in respect of biennial elections to the
Council of States held in 2000.

The relevant observations of the Ethics Committee have already been
extracted, in extenso, in earlier part of this judgment. Suffice it to note here E
again that the committee took cognizance of "the emerging trend of cross
voting in the elections for Rajya Sabha" and allegations that "large sums of
money and other considerations encourage the electorate" for such purpose
"to vote in a particular manner leading sometimes to the defeat of tht: official
candidates belonging to their own political party". The Committee commended
"holding the elections to Rajya Sabha and the Legislative Councils in States
F
by open ballot" so as to remove the mischief played by "big money and other
considerations" with the electoral process.

It is the submission of the learned Counsel for the petitioners that the
observations of the Ethics Committee on which the impugned amendment G
.. was brought about not only fail to justify the amendment but run counter to
the Constitutional scheme of conducting free and fair election which is
necessary for preserving the democracy. On the other hand, the Attorney
General submitted that since the bulk of the candidates are elected under the
party system, the principle that a person elected or given the nomination of
a party should not be lured into voting against the party by money power is H
160 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

A wholesome and a salutary one.
Mr. Sachar has pointed out that the Conduct of Election Rules, 1961
were framed and notified in exercise of powers delegated by the RP Act,
1951. In the wake of the i1ilpugned amendment of Sections 59. 94 and 128
of RP Act, 1951, the said Rules have also been amended by the Central
B Government through S.O. 272 (E) dated 27.02.2004. This amendment has
resulted in Rule 39-AA being added to the Rules for conduct of poll in
election to the Council of States provided in Part VI. Earlier, Rule 39-A had
been added to the said Rules in furtherance of the system of secret ballot.

Rule 39-A may be first taken note of. It reads as under: -
-
c
"39-A. Maintenance of secrecy of voting by electors within polling
station and voting procedure.---(!) Every elector, to whom a ballot
paper has been issued under rule 38-A or under any other provision
of these rules, shall maintain secrecy of voting within the polling
station and for that purpose observe the voting procedure hereinafter
D
laid down.

(2) The elector on receiving the ballot paper shall forthwith -

(a) proceed to one of the voting compartments;

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 E
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 F
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
162 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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
B 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
C 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
D 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
E 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
F 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
G 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 E
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 F
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 G
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.

24. The House of Representatives shall be composed of members
directly chosen by the people of the Commonwealth, and the number
D
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
E 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 D
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 E
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 B
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 C
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 E
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 F
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 G
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;
E 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
F 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
G
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 D
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 E
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 F
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 G
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
E 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
F 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
G 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
H 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 D
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 E
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 F
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 G
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
172 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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
F 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
G 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 A
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 B
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 C
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, E
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 F
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
174 SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.

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
D 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
E 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 A
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 B
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 C
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 D
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 E
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 F
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 G
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?

25. 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.

26. 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
27. 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

28. 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
29. 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
30. 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.

31. 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.

32. 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'."

33. This Court rejected that submission holding:

"Under a list system of proportional representation, it is parties that
E 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
F 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
G 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."
H 34. 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 C
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 D
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 F
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 G
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."

H
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 C
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 D
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 E
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 F
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
E 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
F 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
G 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
H 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 A
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 C
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 D
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 F
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 G
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.