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CASE NO.:

Writ Petition (civil) 217 of 2004

PETITIONER:

Kuldip Nayar

RESPONDENT:

Union of India & Ors.

DATE OF JUDGMENT: 22/08/2006

BENCH:

Y.K.SABHARWAL CJI & K.G.BALAKRISHNAN & S.H.KAPADIA & C.K.THAKKER & P.K.BALASUBRAMANYAN

JUDGMENT:

JUDGMENT

[With Writ Petition (C) Nos.262, 266 and 305 of 2004)

DELIVERED BY:

Y.K.SABHARWAL, CJI

Y.K. Sabharwal, CJI

Background

By this writ petition under Article 32 of the Constitution

of India, petitioner seeks to challenge amendments made in

the Representation of People Act, 1951 (for short, `the RP Act',

1951') through Representation of People (Amendment) Act 40

of 2003 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 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 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 19(1)(a) of the Constitution.

Text of the Statute before the Amending Act 40 of 2003

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. \027 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.

59. Manner of voting at elections. \027

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. \027 No witness or other persons

shall be required to state for whom he

has voted at an election.

128. Maintenance of secrecy of

voting.\027 (1) Every officer, clerk, agent or

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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 any

information calculated to violate such

secrecy.

(2) Any person who contravenes the

provisions of sub-section (1) shall be

punishable with imprisonment for a term

which may extend to three months or fine

or with both."

By Representation of People (Amendment) Act, 2003, (Act

No.40 of 2003), in Section 3 for the words 'in that state or

territory', 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 in the

Council of States shall be given by open

ballot.

94. Provided that this Section shall not

apply to such witness or other 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."

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.

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 Sabha and

the "House of the People", also known as the Lok Sabha.

There 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.

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

of States to be filled by such representatives of the States and

of the Union 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 representation by

means of the single transferable vote". Article 80(5) further

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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 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 qualifications as may be

prescribed in that behalf by or under any law made 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 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".

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 the whole or any part of the

territory of India. Article 246 vests in the Parliament "the

exclusive power" 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

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 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 read with aforementioned enabling

provisions, enacted a law called the "Representation of the

People Act, 1950" (the RP Act, 1950), which came into 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 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 IVA to

the RP Act, 1950.

The RP Act, 1950 did not contain all the provisions

relating to elections. Provisions for the actual conduct of

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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 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 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. - (1) A person

shall not be qualified to be chosen as a

representative of any Part A or Part B

State (other than the State of Jammu and

Kashmir) 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 Tripura in the Council of

States unless he is an elector for any

Parliamentary 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 be qualified

to be chosen as a representative of any

Part C State 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 through the Adaptation of Laws (No. 2)

Order, 1956 and thus came to 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 State other than the

State of Jammu and Kashmir or Union

territory in the 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 47 of 1966,

which made it applicable to all the States and Union

Territories of India by omitting the words "other than the State

of Jammu & Kashmir".

Act 40 of 2003 has amended the provision, with effect

from 28th August, 2003, so as to substitute the words "in that

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State or territory" with the words "in India". The amended

provision reads 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 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'

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 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.

The word "elector" has been defined in Section 2(e) of the

RP Act, 1951 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

(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. \026 (1) A person shall

be disqualified for registration in an

electoral roll if he \026

is not a citizen of India; or

is of unsound mind and stands so

declared by a competent court; or

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 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 (1) shall forthwith be reinstated in

that roll if such disqualification is, during

the period such roll is in force, removed

under any law authorizing such removal."

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Section 19 of the RP Act, 1950 relates to the "conditions

of registration". It provides as under:

"19. Conditions of registration. \026

Subject to the foregoing provisions 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 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:

"20. Meaning of 'ordinarily resident'. \026

(1) 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.

(1A) A person absenting himself

temporarily from his place of ordinary

residence shall not by reason thereof

cease to be ordinarily resident therein.

(1B) 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 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 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 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 the holding

of any such office, he would have been

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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] or but for his holding any

such office as is referred to in sub-section

(4) he would have been ordinarily resident

in a specified place on any 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 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

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, 1950 (46 of

1950), 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

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, must be a

citizen of India, not less than 18 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.

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.

The above amendment, which can be loosely described as

an amendment doing away with the requirement of domicile,

has been challenged as unconstitutional in the writ petitions

at hand.

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Submissions on domicile requirements

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, 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 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-cameral legislature, that such legislature

represents the will of the people of the State whose cause has

to be represented by the members. It is urged that the

impugned amendments removes the distinction in the intent

and purpose of Lok Sabha and Rajya Sabha and that the mere

fact that there exists numerous instances of infringement of

the law concerning the requirements of residence cannot

constitute a valid object or rational reason for deleting the

requirement of residence. Reliance is also placed in this

connection on Rajya Sabha Rules to show the importance of

residence as qualification of a representative of the State. It is

further contended that the requirement of domicile makes the

upper House an 'alter ego' of the lower House.

Mr. Nariman, appearing on behalf of the petitioner Shri

Indrajeet, while supplementing the arguments above-

mentioned, contended that the Constitution and the RP Acts

1950 and 1951 respectively have always been read as forming

part of an integral scheme under which a person ordinarily

resident in a constituency is entitled to be registered in the

electoral roll of that constituency and that the said scheme is

provided for in Article 80 and Article 84 of the Constitution as

also in Sections 17, 18 and 19 of the RP Act, 1950 and in

Section 3 of the RP Act, 1951, which scheme guarantees the

representative character of the Council. It is urged that by

deletion of the word 'domicile' or 'residence' or by not reading

the word 'domicile' or 'residence' in Article 80(4), the basic

requirement of the representative federal body stands

destroyed.

Shri Vahanvati, Ld. Solicitor General of India, on the

question of domicile submitted that the impugned

amendments became necessary in view of various deficiencies

experienced in the working of the RP Act, 1951; that the said

amendments did not alter or distort the character of the

Council of States and that the concept of residence/domicile is

a matter of qualification under Article 84(c) which is to be

prescribed by the Parliament under the Indian Constitution

unlike the US Constitution. In this connection, it was urged

that the members of the Legislative Assembly are in the best

position to decide as to who would represent them in the

Council of States. The submission made was that by the

impugned amendment, the qualification is made more broad

based and that the amendment became necessary for ensuring

representation of unrepresented States. According to Union of

India, there is no constitutional requirement for a member of

the Council of States to be either an elector or an ordinary

resident of the State which he represents and, therefore, the

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word "States" appearing in clause (4) of Article 80 does not

comprise the requirement of residence.

Constitutional & Legislative History

(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.

The key question is whether residence was ever treated

as a constitutional requirement under Article 80(4).

In re: Special Reference No. 1 of 2002 [(2002) 8 SCC

237], it was 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, or any enactment

preceding the enactment of the

Constitutional provisions."

(ii) Legislative History

The Constitution has established a federal system of

Government with bi-cameral legislature at the Centre which is

not something which was grafted in the Constitution for the

first time. Its history goes back to Government of India Act,

1915 as amended in 1919. Even under the Government of

India Act, 1919, the qualification of residence in relation to a

particular constituency was considered to be unnecessary.

This position is indicated by Rule XI of the then Electoral

Rules. This position is also indicated by the provisions of the

Government of India Act, 1935 under which the Legislature at

the Centre was bi-cameral. The Lower Chamber was called

'House of Assembly'. The Upper Chamber was called 'Council

of States'. Under the Government of India Act, 1935 (for short,

the 'GI Act'), the Council of States was a permanent body with

one-third of its members retiring every third year. Sixth

Schedule to the GI Act made provisions for franchise. Part I of

that Schedule contained qualifications. It did not include

residence as a qualification of the elector. However, there were

other parts to the Sixth Schedule which dealt with certain

subjects exclusive for different provinces in which there was a

requirement of residence. This was under the heading 'general

requirements. However, there was no uniformity. In certain

cases, residence was prescribed as a qualification (for example

in the case of Central Provinces, Berar and Bengal) 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.

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 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

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scientists, teachers etc. for which purpose, the President

should be given authority to nominate. The necessity of the

Upper Chamber was also the subject matter of debate in the

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.

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 1 of

Part I of the Fourth Schedule dealt with the general

qualifications for the members which included citizenship and

minimum age of not less than 35 years in the case of a seat in

the Council of States. The said paragraph further stated that

apart from citizenship and age qualifications, it would be open

to the Parliament to describe any other qualification as may be

appropriate. Paragraph 6 of Part I of the Fourth Schedule

appended to the first draft Constitution provided for the

qualification of residence in a State for a candidate to be

chosen to the Council of States. Clause 60 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 was omitted by the

Drafting Committee. This was on 11th February, 1948.

Therefore, with this deletion, the requirement of residence was

done away with.

The entire discussion with regard to the legislative

history is only to show that residence was never the

constitutional requirement. It was never treated as an

essential ingredient of the structure of the Council of States.

It has been treated just a matter of qualification. Further, the

legislative history shows that qualification of residence has

never been a constant factor. As the legislative history shows,

ownership of assets, dwelling house, income, residence etc.

were considered as qualification from time to time depending

upon the context and the ground reality. The power to add

qualifications was given to the Federal Parliament. Therefore,

the legislative history of constitutional enactments like the GI

Act shows that residence or domicile are not the essential

ingredients of the structure and the composition of the Upper

House.

At this stage, one event needs to be highlighted. The

Drafting Committee included a separate chapter under Part

XIII 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 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 which included citizenship

and the minimum age subject to any other qualification that

may be prescribed by law made by the Parliament. The

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Drafting Committee justified the inclusion of Article 68A in the

following words :

"Article 152 prescribes an age

qualification for members of State

Legislatures. There is no corresponding

provision for members of Parliament.

There is, moreover, a strong feeling in

certain quarters that a provision

prescribing or permitting the prescription

of educational and other qualifications for

membership both of Parliament and of

the State Legislatures should be included

in the Draft. If any standard of

qualifications is to be laid down for

candidates for membership it must be so

precise that an election tribunal will be

able to say, in a given case, whether the

candidate satisfied it or not. To

formulate precise and adequate

standards of this kind will require time.

Further, if any such qualifications are

laid down in the Constitution itself, it

would be difficult to alter them if

circumstances so require. The best

course would, therefore, be to insert an

enabling provision in the Constitution

and leave it to the appropriate legislature

to define the necessary standards later.

Whatever qualifications may be

prescribed, one of them would certainly

have to be the citizenship of India."

To sum up, the legislative history indicates that residence

is not a constitutional requirement of clause (4) of Article 80.

Residence is a matter of qualification. Therefore, it comes

under Article 84 which enables the Parliament to prescribe

qualifications from time to time depending upon the fact

situation. Unlike USA, residence is not a constitutional

requirement. In the context of Indian Constitution,

residence/domicile is an incident of federalism which is

capable of being regulated by the Parliament as a qualification

which is the subject matter of Article 84. This is borne out by

the legislative history.

Composition of Parliament

India's Parliament is bicameral. The two Houses along

with the President constitute Parliament [Article 79]. The

Houses differ from each other in many respects. They are

constituted on different principles, and, from a functional

point of view, they do not enjoy a co-equal status. Lok Sabha

is a democratic chamber elected directly by the people on the

basis of adult suffrage. It reflects popular will. It has the last

word in matters of taxation and expenditure. The Council of

Ministers is responsible to the Lok Sabha.

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 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

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passed by the Lok Sabha. Although 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 Rajya

Sabha vote not at the dictate 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 Sabha be abolished.

Composition of Rajya Sabha

The maximum strength of Rajya Sabha is fixed at 250

members, 238 of whom are elected representatives of the

States and the Union Territories and 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 with

bigger population. This is called "weighted proportional

representation". The system of proportional representation

helps in giving due representation to minority groups. The

representatives of a State in Rajya Sabha are elected by the

elected members of the State Legislative Assembly in

accordance with the system of proportional representation by

means of a single transferable vote [Article 80(1)(b) and Article

80(4)]. Rajya Sabha is a continuing body. It has nominated

members. They are nominated by the President on the advice

of Council of Ministers. There is no difference in status

between elected and nominated members of Rajya Sabha

except that the elected members can participate in the election

of the President whereas the nominated members cannot do

so. One-third of its members retire every two years and their

seats are filled by fresh elections and nominations.

Rajya Sabha's power under Article 249 of the Constitution

The Indian union has been described as the 'holding

together' of different areas by the constitution framers, unlike

the 'coming together' of constituent units as in the case of the

U.S.A. and the confederation of Canada. Hence, the Rajya

Sabha was vested with a contingency based power over state

legislatures under Article 249, which contributes to the

'Quasi-federal' nature to the government of the Indian union.

Under Article 249(1), if the Rajya Sabha declares by a

resolution, supported by not less than two-thirds of it's

members present and voting, that it is necessary or expedient

in national interest that Parliament should make laws with

respect to any of the matters enumerated in the State list [List

II of Seventh Schedule read with Article 246], specified in the

resolution, it shall be lawful for parliament to make laws for

the whole or any part of the territory of India with respect to

that matter while the resolution remains in force. Article 249

clause (2) and (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 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'

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under normal circumstances is not seen either in U.S.A. or

Canada.

Federalism

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 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 uncontroverted. Let me take up

a matter which is perhaps partly

theoretical but one which has a validity

so far as the average man in this country

is concerned. Are we framing a unitary

Constitution? Is this Constitution

centralizing power in Delhi? Is there any

way provided by means of which the

position of people in various areas could

be safeguarded, their voices heard in

regard to matters of their local

administration? I think it is a very big

charge to make that this Constitution is

not a federal Constitution, and that it is a

unitary one. We should not forget that

this question that the Indian Constitution

should be a federal one has been settled

by our Leader who is no more with us, in

the Round Table Conference in London

eighteen years back."

"I would ask my honourable friend to

apply a very simple test so far as this

Constitution is concerned to find out

whether it is federal or not. The simple

question I have got from the German

school of political philosophy is that the

first criterion is that the State must

exercise compulsive power in the

enforcement of a given political order, the

second is that these powers must be

regularly exercised over all the

inhabitants of a given territory; and the

third is the most important and that is

that the activity of the State must not be

completely circumscribed by orders

handed down for execution by the

superior unit. The important words are

'must not be completely circumscribed',

which envisages some powers of the State

are bound to be circumscribed by the

exercise of federal authority. Having all

these factors in view, I will urge that our

Constitution is a federal Constitution. I

urge that our Constitution is one in

which we have given power to the Units

which are both substantial and

significant in the legislative sphere and in

the executive sphere."

(emphasis supplied)

In this context, Dr. B.R. Ambedkar, speaking in the

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Constituent Assembly had explained the position in the

following words:

"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 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 Constitution does. The States,

under our Constitution, are in no way

dependent upon the Centre for their

legislative or executive authority. The

Centre and the States are co-equal in this

matter. It is difficult to see how such a

Constitution can be called centralism. It

may be that the Constitution assigns to

the Centre too large a field for the

operation of its legislative and executive

authority than is to be found in any other

Federal Constitution. It may be that the

residuary powers are given to the Centre

and not to the States. But these features

do not form the essence of federalism.

The chief mark of federalism, as I said

lies in the partition of the legislative and

executive authority between the Centre

and the Units by the Constitution. This is

the principle embodied in our

Constitution." (emphasis supplied)

The Constitution incorporates the concept of federalism

in various provisions. The provisions which establish the

essence of federalism i.e. 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 legislation by any

other State; competence of Parliament to legislate in matters

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(1) to entrust a State Government, 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.

In re: Under Article 143, Constitution of India,

(Special Reference No. 1 of 1964) [AIR 1965 SC 745

(Paragraph 39 at 762)], this Court ruled thus:

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"In dealing with this question, it is

necessary to bear in mind one

fundamental feature of a Federal

Constitution. In England, Parliament is

sovereign; and in the words of Dicey, the

three distinguishing features of the

principle of Parliamentary Sovereignty are

that Parliament has the right to make or

unmake any law whatever; that no

person or body is recognised by the law of

England as having a right to over-ride or

set aside the legislation of Parliament,

and that the right or power of Parliament

extends to every part of the Queen's

dominions (1). On the other hand, the

essential characteristic of federalism is

"the distribution of limited executive,

legislative and judicial authority among

bodies which are coordinate with and

independent of each other". The

supremacy of the constitution is

fundamental to the existence of a federal

State in order to prevent either the

legislature of the federal unit or those of

the member States from destroying or

impairing that delicate balance of power

which satisfies the particular

requirements of States which are

desirous of union, but not prepared to

merge their individuality in a unity. This

supremacy of the constitution is

protected by the authority of an

independent judicial body to act as the

interpreter of a scheme of 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."

In the case of State of Karnataka v. Union of India &

Anr. [1978 (2) SCR 1], 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 separate,

independent and sovereign State could be

said to have 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 : 1994 (3) SCC 1], 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:

"\005\005\005 the significant absence of the

expressions like 'federal' or 'federation' in

the constitutional vocabulary,

Parliament's powers under Articles 2 and

3 elaborated earlier, the extraordinary

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powers conferred to meet emergency

situations, the residuary powers

conferred by Article 248 read with Entry

97 in List I of the VII Schedule on the

Union, the power to amend the

Constitution, the power to issue

directions to States, the concept of a

single citizenship, the set up of an

integrated judiciary, etc., etc., have led

constitutional experts to doubt the

appropriateness of the appellation

'federal' to the Indian Constitution. Said

Prof. K. C. Wheare in his work 'Federal

Government:

'What makes one doubt that

the Constitution of India is

strictly and fully federal,

however, are the powers of

intervention in the affairs of

the States given by the

Constitution to the Central

Government and Parliament'."

Thus in the United States, the sovereign

States enjoy their own separate existence

which cannot be impaired; indestructible

States having constituted an

indestructible Union. In India, on the

contrary, 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

Constitution 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 is

there in a name, what is important to

bear 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)

Justice K. Ramaswami in Paragraph 247 and 248 of

his separate Judgment 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 1

of the Constitution and is indestructible.

The State is the creature of the

Constitution and the law made by

Articles 2 to 4 with no territorial integrity,

but a permanent entity with its

boundaries alterable by a law made by

Parliament. Neither the relative

importance 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

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respective legislative powers are traceable

to Articles 245 to 254 of the Constitution.

The State qua the Constitution is federal

in structure and independent in its

exercise of legislative and executive

power. However, being the creature of the

Constitution the State has no right to

secede or claim sovereignty. Qua the

Union, State is quasi-federal. Both are

coordinating institutions and ought to

exercise their respective powers with

adjustment, understanding and

accommodation to render socio-economic

and political justice to the people, to

preserve and elongate the constitutional

goals including secularism.

248. The preamble of the Constitution is

an integral part of the Constitution.

Democratic form of Government, federal

structure, unity and integrity of the

nation, secularism, socialism, social

justice and judicial review are basic

features of the Constitution."

(emphasis supplied)

Justice B. P. Jeevan Reddy, writing separate Judgment

(for himself and on behalf of S.C. Agrawal, J.) concluded in

Paragraph 276 thus:

"The fact that under the scheme of our

Constitution, greater power is conferred

upon the Centre vis-`-vis the States does

not mean that States are mere

appendages of the Centre. Within the

sphere allotted to them, States are

supreme. The Centre cannot tamper with

their powers. More particularly, the

Courts should not adopt an approach, an

interpretation, which has the effect of or

tends to have the effect of whittling down

the powers reserved to the States.

\005\005\005\005must put the Court on guard

against any conscious whittling down of

the powers of the States. Let it be said

that the federalism in the Indian

Constitution is not a matter of

administrative convenience, but one of

principle the outcome of our own

historical process and a recognition of the

ground realities. \005\005\005. enough to note

that our Constitution has certainly a bias

towards Centre vis-`-vis the States

(Automobile Transport (Rajasthan) Ltd. v.

State of Rajasthan, (1963) 1 SCR 491 at

page 540 : (AIR 1962 SC 1406). It is

equally necessary to emphasise that

Courts should be careful 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: -

"In this connection, we may also refer to

what Dr Ambedkar had to say while

answering the debate in the Constituent

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Assembly in the context of the very

Articles 355, 356 and 357. \005\005\005\005. He

has emphasised there that

notwithstanding the fact that there are

many provisions in the Constitution

whereunder the Centre has been given

powers to 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 106, his following observations are

relevant:-

"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 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."

(emphasis supplied)

In ITC Ltd. v. Agricultural Produce Market Committee

& Ors. [(2002) 9 SCC 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\005."

(emphasis supplied)

In State of West Bengal v. Kesoram Industries Ltd. &

Ors. [AIR 2005 SC 1646 : (2004) 10 SCC 201], 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 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

others v. Union of India [(1994) 3 SCC

1], may be touched. Our Constitution has

a federal structure. Several provisions of

the Constitution unmistakably show that

the Founding Fathers intended to create

a strong centre\005.."

(emphasis supplied)

True, the federal principle is dominant in our

Constitution and that principle is one of its basic features,

but, it is also equally true that federalism under Indian

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Constitution leans in favour of a strong centre, a feature that

militates against the concept of strong federalism. Some of the

provisions that can be referred to in this context include the

power of the Union to deal with extraordinary situations such

as during the emergency (Article 250, 252, 253) and in the

event of a proclamation being issued under Article 356 that

the governance of a State cannot be carried on in accordance

with the provisions of the Constitution; the power of the

Parliament to legislate with respect to a matter in the State

List in the national interest in case there is a resolution of the

Council of States supported by prescribed majority (Article

249); the power of the Parliament to provide for creation and

regulation of All India Services common to Union and the

States in case there is a Resolution of the 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 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).

This Court in the case of State of West Bengal v. Union

of India [(1964) 1 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) 1 SCR 1 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 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-`-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 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 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].

The arguments of the Writ Petitioners about the status,

position, role and character of the Council of States in the

Constitutional scheme have to be examined in the light of well-

settled law, culled out above, as to the nature of Indian

federalism.

In his attempt to argue that there necessarily has to be a

territorial nexus with a State or a Union Territory in a federal

set up, Mr. Rao for the State of Tamil Nadu referred to the use

of the expression "We, the people of India" in the Preamble,

description of India as a "Union of States" in Article 1; territory

of India being comprised of (1) the territories of the States and

(b) the territories of the Union Territories as per Article 1(3);

Article 326 requiring a person to be a citizen of India so as to

be an elector; and the provisions about citizenship of India as

contained in Articles 5, 6, 8 & 9 laying stress on the territory

of India. He also referred to the Collins Paperback English

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

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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.].

Mr. Sachar, taking a similar line, submitted that

requirement of domicile is so intrinsic to the 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. 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".

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 constitutional set up, the

States and Union Territories have their own problems,

interests, concerns and views about many issues and,

therefore, there shall be a forum exclusively to represent the

States and the Union Territories in the national legislature, i.e.

Parliament. Unless a person belongs to a State or a Union

Territory, in the scheme of the Constitution he will not have

the capacity to represent the State or the Union Territory, as

the case may be.

But then, India is not a federal State in the traditional

sense of the term. There can be no doubt as to the fact, and

this is of utmost significance for purposes at hand, that in the

context of India, the principle of federalism is not territory

related. This is evident from the fact that India is not a true

federation formed by agreement between various States and

territorially it is open to the Central Government under Article

3 of the Constitution, not only to change the boundaries, but

even to extinguish a State {State of West Bengal v. Union of

India, [(1964) 1 SCR 371]}. Further, when it comes to

exercising powers, they are weighed heavily in favour of the

Centre, so much so that various descriptions have been used

to describe India such as a pseudo-federation or quasi-

federation in an amphibian form, etc.

The Constitution provides for the bicameral legislature at

the centre. The House of the People is elected directly by the

people. The Council of States is elected by the Members of the

Legislative assemblies of the States. 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 must belong to that State. There is no such

principle discernible as an essential attribute of Federalism,

even in the various examples of upper chamber in other

countries.

Other Constitutions \026 Role of Rajya Sabha vis-`-vis role of

Upper House in the other Constitutions

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

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terms 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.

Since then, many nations have adopted a bicameral form

of central legislature, even though some of them are not

federations. On account of Colonial rule, 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 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 \026 namely the Lok

Sabha, the House of Representatives and the House of

Commons broadly follow the same system of composition. As

of now, Members of the Lower Houses are elected from pre-

designated constituencies through universal adult suffrage.

The demarcation of these constituencies is in accordance with

distribution of population, so as to accord equity in the value

of each vote throughout the territory of the country. However,

with the existence of constituent states of varying areas and

populations, the representation accorded to these states in the

Lower House becomes highly unequal. Hence, the

composition of the Upper House has become an indicator of

federalism, so as to more adequately reflect the interests of the

constituent states and ensure a mechanism of checks and

balances against the exercise of power by central authorities

that might affect the interests of the constituent states.

However, the area of focus is to analyse the role of second

chambers in the context of centre-state relations i.e.

embodiment of different degrees of federalism. This motive

also illustrates the choice of the Indian Rajya Sabha, the U.S.

Senate and the Canadian Senate, since these three nations are

notable examples of working federations over large territories

and populations which have a high degree of diversity at the

same time. The chief criterion of comparison will be the

varying profile of representation accorded to the constituents

units by the methods of composition and the differences in the

powers vested with the 'Upper houses' in the constitutional

scheme of the countries. Many Political theorists and

Constitutional experts are of the opinion that in the

contemporary context, 'Second Chambers' are losing their

intended characteristics of effectively representing the

interests of states and are 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 context was first seen in the Constitution of the

United States. The thirteen original colonies had been

governed under varying structures until independence from

British Rule and hence the element of states' identity was

carried into the subsequent Union. For purposes of the

Federal legislature, there were concerns by the smaller states

that the recognition of constituencies on the basis of

population would accord more representation and power to the

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bigger and more populous states. Furthermore, in that era,

voting rights were limited to white males and hence the size of

the electorates were relatively larger in the Northern states as

compared to the Southern states which had a comparatively

higher proportion of Negroid population who had no franchise.

Hence, the motives of Federalism and ensuring of more parity

between states of different sizes resulted in a compromise in

the drafting of the constitution. While the Lower House of

Congress, i.e. the House of representatives was to be

constituted by members elected from Constituencies based on

population distribution, the Senate was based on equal

representation for all states. Initially, the two senators from

each state were elected by the respective State legislatures but

after the 17th amendment of 1913, Senators have been elected

by open adult suffrage among the whole electorate of a state.

This inherent motive of ensuring a counter-balance to the

power of the federal government and larger states has

persisted in the functioning of the Senate. This is reflected by

the fact that the U.S. Senate has also been vested with certain

extra-legislative powers, which distinguish it from Second

Chambers in other countries. Moreover, the Senate is a

continuing body with senators being elected for 6 year terms

and 1/3rd 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 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 Quebec, which had the historical

influence of French rule) were being administered as distinct

territories. This act established a confederation among the

constituent provinces. Hence, the parliament of the Dominion

was in effect the federal legislature comprising of the House of

Commons and the Senate. The Senate was given two major

functions in the constitution. First, it was to be the chamber

of "sober second thought". Such a limit should prevent the

elected House of Commons from turning Canada into a

"mobocracy", as the framers of Confederation (the 1867 Act)

saw in case of the U.S.A. The Senate was thus given the

power to overturn many types of legislation introduced by the

Commons and also to delay any changes to the constitution,

thus 'preventing the Commons from committing any rash

actions'. While the House of Commons was to be constituted

through constituency based elections on the lines of the House

of Commons in the British Parliament and the House of

Representatives in the U.S. Congress, the Senate accorded

equivalent representation to designated regions rather than

the existing provinces. The number of senators from each

state has consequently varied with changes in the

confederation. However, the Canadian senators are appointed

by the Governor-General in consultation with the Executive

and hence the Canadian senate has structurally been

subservient to the House of Commons and consequently also

to the Federal executive to an extent. This 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 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

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allowing too much power to the states. However, the role of

the Canadian senate has been widely criticized owning to it's

method of composition.

The genesis of the Indian Rajya Sabha on the other hand

benefited from the constitutional history of several nations

which allowed the Constituent 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

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 and cultural factors between regions also

posed a challenge for the newly independent country. Hence,

the Upper House was instituted by the Constitution framers

which would substantially consist of members elected by state

legislatures and have a fixed number of nominated members

representing non-political fields. However, the distribution of

representation between states in the Rajya Sabha is neither

equal nor entirely based on population distribution. A basic

formula is used to assign relatively more weightage to smaller

states but larger states are accorded weightage regressively for

additional population. Hence the Rajya Sabha incorporates

unequal representation for states but with proportionally more

representation given to smaller states. The theory behind

such allocation of seats is to safeguard the interests of the

smaller states but at the same time giving adequate

representation to the lager states so that the will of the

representatives of a minority of the electorate does not prevail

over that of a majority.

In India, Article 80 of the Constitution of India prescribes

the composition of the Rajya Sabha. The maximum strength

of the house is 250 members, out of which up to 238 members

are the elected representatives of the states and the Union

territories [Article 80(1) (b)], and 12 members are nominated

by the President as representatives of non-political fields like

literature, science, art and social services [Articles 80(1)(a) and

80(3)]. The members from the states are elected by the elected

members of the respective 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 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 1/3rd of the

members retiring every 2 years. These 'staggered terms' also

lead to a consequence where the membership 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 Deputy Chairman. Articles 90, 91, 92 and 93

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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 1, section 3 of the U.S.

Constitution, two senators are elected from every state by an

open franchise, and hence the total membership of the Senate

stands at 100. It is generally perceived in American society

that the office of a senator commands more prestige than that

of a member in the House of Representatives. As has been

stated before, Senators were chosen by members of the

respective State legislatures before the 17th amendment of

1913 by which the system of open franchise was introduced.

The candidates seeking election to the Senate have to be more

than 30 years old and should have been citizens of the U.S.A.

for more than 9 years and also should have legal residence in

the state they are seeking election from. Senators are elected

for 6 year terms, with 1/3rd of the members either retiring or

seeking re-election every 2 years. Senators can run for re-

election an unlimited number of times. 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 (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. As indicated earlier, the Senators are

appointed by the Governor-General on the advice of the Prime

Minister. The membership of the house as of today is 105 and

it accords equivalent representation to designated regions and

not necessarily the constituent provinces and territories. The

Prime Minister's decision regarding appointment of senators

does not require the approval of anyone else and is not subject

to review. The qualifications for membership are an age

requirement of 30 years, citizenship of the Dominion of

Canada by natural birth or naturalization and residency

within the province from where appointment is sought. In the

case of Quebec, appointees must be residents of the electoral

district for which they are appointed. Once appointed,

senators 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 party

affiliations in appointments, the provision for holding terms till

the age of 75 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 Lower House are elected for 5 year terms.

Now that a general idea has been gained on the methods

of composition of the Second Chambers in India, U.S.A. and

Canada, one can analyse the varying degree of representation

accorded to constituent states in the three systems before

proceeding to compare the policy scope as well as the practical

and extra-legislative powers accorded to these chambers.

The idea of equal representation for states in the Senate

was built into the American Constitution. The 17th

amendment can hence be considered a reform in so far as 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.

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Hence, actual representation per vote in the U.S. senate is

higher for smaller states and likewise much lower for more

populous states. On a theoretical as well as practical

standpoint, this can create situations where the

representatives of the minority of the electorate can guide

legislation over those of the majority.

Canada opted for a variation of the equivalent

representation for designated regions and hence the

representation accorded to provinces and territories was

loosely based on population distribution. However,

demographic changes over many decades impact the actual

representation accorded to each territory. Furthermore, the

nominal system of appointment to the Canadian Senate

creates the position that the will of the Senate will ordinarily

flow with the federal executive.

The unequal yet weighed proportional representation

method adopted for Rajya 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. would create immense asymmetry in the

representation of equally divided segments of the electorate.

Furthermore, the formation and re-organisation of states in

India since independence has largely been on linguistic lines

and other factors of cultural homogeneity among groups,

where the sizes of these communities vary tremendously in

comparison to each other. Hence, allocating seats to the

states in the Rajya Sabha, either on equal terms or absolutely

in accordance with population distribution would have been

extreme solutions. Hence, the formula applied for the

purposes of allocation of seats in the Fourth schedule seems

to be a justifiable solution. This point can be illustrated with

the trend that between 1962 and 1987, six new states were

carved out of Assam. If India had followed the equal

representation model, these new states, containing barely 1%

of India's population, would have had to be given 25% of all

the votes in the upper chamber. Hypothetically, the more

populous states would never have allowed this. Thus an

essential feature of the working of federalism in India i.e. the

creation of new states, some of which had violent separatist

tendencies, would have been difficult under the U.S. principle

of representation for each state equally.

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

countries show that residence, in the matter of qualifications,

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.

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 Parliament, in its wisdom has chosen not to

require residential qualification, it would definitely not violate

the basic feature of Federalism. Our Constitution does not

cease to be a federal constitution simply because a Rajya

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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

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.

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 (1)

SCC 378] as an earlier case wherein the Bihar Intermediate

Education Council Ordinance, 1985 was struck down as

unconstitutional and void on the basis that it was repugnant

to the constitutional scheme.

In that case Government of Bihar was found to have

"made it a settled practice to go on re-promulgating

ordinances from time to time and this was done

methodologically and with a sense of deliberateness".

Immediately at the conclusion of each session of the State

legislature, a circular letter would be sent by the Special

Secretary in the Department of Parliamentary Affairs to all the

Departments intimating to them that the session of the

legislature had been got prorogued and that under Article 213

clause (2)(a) of the Constitution all the ordinances would cease

to be in force after six weeks of the date of reassembly of the

legislature and "that they should therefore get in touch with

the Law Department and immediate action should be initiated"

to get all the concerned ordinances re-promulgated before the

date of their expiry.

This Court in above fact situation held and observed as

under :-

"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 force

beyond the period of six weeks has to go

before the legislature which is the

constitutional authority entrusted with

the law-making function, it would most

certainly be a colourable exercise of

power for the government to ignore the

legislature and to repromulgate the

ordinance and thus to continue to

regulate the life and liberty of the citizens

through ordinance made by the

executive. Such a strategem would be

repugnant to the constitutional scheme,

as it would enable the executive to

transgress its constitutional limitation in

the matter of law-making in an emergent

situation and to covertly and indirectly

arrogate to itself the law-making function

of the legislature."

Noticeably the above view was taken about the

Ordinances issued by the State of Bihar in the face of clear

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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 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 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 (1) 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

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:-

"\005.Parliament and the legislature in this

country cannot transgress the basic

feature of the Constitution, namely, the

principle of equality enshrined in Article

14 of which Article 16(1) is a facet.

Whether the creamy layer is not excluded

or whether forward castes get included in

the list of backward classes, the position

will be the same, namely, that there will

be a breach not only of Article 14 but of

the basic structure of the Constitution.

The non-exclusion of the creamy layer or

the inclusion of forward castes in the list

of backward classes will, therefore, be

totally illegal. Such an illegality offending

the root of the Constitution of India

cannot be allowed to be perpetuated even

by constitutional amendment. The Kerala

Legislature is, therefore, least competent

to perpetuate such an illegal

discrimination. What even Parliament

cannot do, the Kerala Legislature cannot

achieve."

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 \026 Smt. Indira

Nehru Gandhi v. Raj Narain, [1975 Supp SCC 1] ). 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 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: -

"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

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has to be appreciated at the threshold

that the contention that legislative

measures are subject to restrictions of

the 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: -

"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 (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 or destruction of basic features, basic

structure or basic framework or on the

ground of violation of fundamental

rights."

(emphasis supplied)

In same case, K.K. Mathew, J. in Paragraph 345 of his

separate judgment ruled as under: -

"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 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. It is only the specific

provisions enacted in the Constitution

which could operate as limitation upon

that power. The preamble, though a part

of the Constitution, is neither a source of

power nor a limitation upon that power.

The preamble sets out the ideological

aspirations of the people. The essential

features of the great concepts set out in

the preamble are delineated in the

various provisions of the Constitution. It

is these specific provisions in the body of

the Constitution which determine the

type of democracy which the founders of

that instrument established; the quality

and nature of justice, political, social and

economic which was their desideratum,

the content of liberty of thought and

expression which they entrenched in that

document, the scope of equality of status

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and of opportunity which they enshrined

in it. These specific provisions enacted in

the Constitution alone can determine the

basic structure of the Constitution as

established. These specific provisions,

either separately or in combination

determine the content of the great

concepts set out in the preamble. It is

impossible to spin out any concrete

concept of basic structure out of the

gossamer concepts set out in the

preamble. The specific provisions of the

Constitution are the stuff from which the

basic structure has to be woven. The

argument of Counsel for 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 State Legislatures

tested in the light of the provisions of the

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)

In Paragraph 356, he proceeded to rule as under: -

"There is no support from the majority in

Bharati's case (supra) for 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 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."

(emphasis supplied)

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 law must be

within the legislative competence of the

legislature as defined and specified in

Chapter I, 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 Constitution. The theory

of basic structure is woven out of the

conspectus of the Constitution and the

amending power is subjected to it

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because it is a constituent power. "The

power to amend the fundamental

instrument cannot carry with it the power

to destroy its essential features \027 this, in

brief, is the arch of the theory of basic

structure. It is wholly out of place in

matters relating to the validity of ordinary

laws made under the Constitution."

(emphasis supplied)

In Paragraph 692, he would rule as under: -

"There is no paradox, because certain

limitations operate upon 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, though species of the same

genus, operate in different fields and are

therefore subject to different limitations."

(emphasis supplied)

A Constitution Bench (7 Judges) in State of Karnataka

v. Union of India & Anr. [(1977) 4 SCC 608] held, per

majority, (paragraph 120) as under:-

"\005\005 in every case where reliance is

placed upon it, in the course of an attack

upon legislation, whether ordinary or

constituent (in the sense that it is an

amendment of the Constitution), what is

put forward as part of "a basic structure"

must be justified by references to the

express provisions of the

Constitution\005\005"

In Paragraph 197, it was observed as under: -

"\005\005.if a law is within the legislative

competence of the Legislature, it cannot

be invalidated on the supposed ground

that it has added something to, or has

supplemented, a constitutional provision

so long as the addition or

supplementation is not inconsistent with

any provision of the Constitution\005."

The following observations in Paragraph 238 of same

judgment are also germane to the issue: -

"Mr. Sinha also contended that an

ordinary law cannot go against the basic

scheme or the fundamental backbone of

the 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\005\005.."

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The doctrine of 'Basic Feature' in the context of our

Constitution, thus, does not apply to ordinary legislation

which has only a dual criteria to meet, namely:

(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.

Reference can also be made in this respect to Public

Services Tribunal Bar Association v. State of U.P. & Anr.

[2003 (4) SCC 104] and State of Andhra 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 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.

As stated above, 'residence' is not the constitutional

requirement and, therefore, the question of violation of basic

structure does not arise.

Argument of contemporary legislation & Constitutional

Scheme

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.

In support of the contention about the integrated scheme

of 'Election', Mr. Nariman would first refer to N.P.

Ponnuswami v. Returning Officer, Namakkal

Constituency & Ors. [AIR 1952 SC 64:1952 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 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 of the Returning Officer by reason of the

provisions of Article 329(b) of the Constitution.

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, 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; and (3) there should be a

judicial tribunal to deal with disputes

arising out of or in connection with

elections. Articles 327 and 328 deal with

the first of these requisites, Article 324

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with the second and Article 329 with the

third requisite. \005\005.. Part XV of the

Constitution is really a code in itself

providing the entire ground-work for

enacting appropriate laws and setting up

suitable machinery for the conduct of

elections.

"The Representation of the People Act,

1951, which was passed by Parliament

under Article 327 of the Constitution,

makes detailed provisions in regard to all

matters and all stages connected with

elections to the various legislatures in

this country.

"The fallacy of the argument lies in

treating a single step taken in

furtherance of an election as equivalent

to election. The decision of this appeal

however turns not on the construction of

the single word "election", but on the

construction of the compendious

expression \027 "no election shall be called

in question" in its context and setting,

with due regard to the scheme of Part XV

of the Constitution and the

Representation of the People Act, 1951.

Evidently, the argument has no bearing

on this method of approach to the

question posed in this appeal, which

appears to me to be the only correct

method."

(Emphasis supplied)

In Mohinder Singh Gill & Anr. v. The Chief Election

Commissioner, New Delhi & Ors. [1978 (1) SCC 405 (427)],

a similar view was taken in the following words: -

"The paramount policy of the

Constitution-framers in declaring that no

election shall be called in question except

the way it is provided for in Article 329(b)

and the Representation of the People Act,

1951, compels us to read, as Fazal Ali J.

did in Ponnuswami, the Constitution and

the Act together as an integral scheme.

The reason for postponement of election

litigation to the post-election stage is that

elections shall not unduly be protracted

or obstructed. The speed and

promptitude in getting due representation

for the electors in the legislative bodies is

the real reason suggested in the course of

judgment.

38. Article 324, which we have set out

earlier, is a plenary provision vesting the

whole responsibility for national and

State elections and, therefore, the

necessary power to discharge that

function. It is true that Article 324 has to

be read in the light of the constitutional

scheme and the 1950 Act and the 1951

Act."

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The above view was reiterated by the Constitution Bench

in Gujarat 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 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 from the date of

dissolution of the Legislative Assembly."

Mr. Nariman 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 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 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 required to be "an elector for a Parliamentary

constituency in that State or in any of the States in that

group, as the case may be". In the case of the States of Ajmer

and Coorg or of the States of Manipur and Tripura, which

formed two separate groups for the purpose in the Council of

States, the arrangement was to rotate the seats and so it was

essential for the candidate to be "an elector for any

Parliamentary constituency in the State in which the election

of such representative is to be held".

Mr. P.P. Rao, Senior Advocate appearing for the State of

Tamil Nadu had a similar take on the subject and pressed in

aid the principle of 'contemporanea expositio'. His submission

was that this principle is relevant for interpreting the words

"the representative of each State" in Article 80(4) of the

Constitution. His argument was that the RP Acts 1950 and

1951 are contemporaneous legislations made by the

Constituent Assembly itself acting as provisional Parliament

and that they are a useful aid for the interpretation of Articles

79 and 80, just as subordinate legislation is for interpreting an

Act.

In the above context, Mr. Rao referred to various

decisions. He would urge that the following words, extracted

from Paragraph 236 in I.C. Golak Nath & Ors. v. State of

Punjab & 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

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enactments. We find a 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 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:

"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 following propositions:

(1) Subordinate legislation may be used

in order to construe the parent Act,

but only where power is given to

amend the act by 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 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.

(4) Where the Act provides a framework

built on by contemporaneously

prepared regulations, the latter may

be a reliable guide o the meaning of

the former.

(5) The regulations are a clear guide,

and may be decisive, when 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."

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

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said to have followed the case referred to in the preceding

Paragraph.

In Desh Bandhu Gupta And Co. & Ors. v. Delhi Stock

Exchange Association Ltd. [(1979) 4 SCC 565], this court

held as under:

"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 not always be decisive of the

question of construction (Maxwell 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)

generally should be clearly wrong before

it is overturned; such 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 ILR

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 stated by

Mookerjee, J., thus:

It is well-settled principle of

interpretation that courts in construing a

statute will give much 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\005 I do not suggest for a moment

that 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 persuasive reasons, and in

a clear case of error, a court would

without hesitation refuse to follow such

construction."

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

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. M/s. Hind Stone & Ors.

[(1981) 2 SCC 205], it was held as under:

"The Mines and Minerals (Regulation and

Development) Act is a law enacted by

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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 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

(1961) 2 SCR 679, 702; see also Maxwell:

INTERPRETATION OF STATUTES, 11th

Edn. Pp. 49-50). So, statutory rules

made pursuant to the power entrusted by

Parliament are law made by Parliament

within the meaning of Article 302 of the

Constitution."

In Commissioner of Income Tax, Jullundur v. Ajanta

Electricals, Punjab [(1995) 4 SCC 182], it was ruled thus:

"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 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 constitutional rule. It does not have the

sanctity or normative value of Constitutional Law. When the

Act of 1951 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.

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 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 the 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 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

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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.

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.

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 laws passed by the

Provisional Parliament enjoy the same status as the

Constitution or some such special status. This would be

neither a healthy nor a permissible approach. All enactments

passed by provisional Parliament, including the RP Act 1951,

are laws like any other law made by Parliament. Accordingly,

each of them is subject to power of Parliament to bring about

amendments like any other statute. Over the years, there have

been several amendments to the RP Act, 1950 and RP Act,

1951. If the argument of the petitioner were to be correct, all

the amendments made so far in these Acts would have

required Constitutional amendments.

While there need be no quarrel with the proposition that

the Constitution and the RP Acts form an integrated scheme of

elections, it does not follow that on this account the

domiciliary requirement in Section 3 RP Act 1951, as originally

enacted, is part of the said scheme so as to be treated a

constitutional requirement.

Restrictions under Article 368

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 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.

Article 368 relates to power of Parliament to amend the

Constitution and the procedure therefor. The Proviso in

question puts limits on the power of 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

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

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the terms of the Bill:

Provided that if such amendment seeks

to make any change in \026

(a) xxxx

(b) xxxx

(c) xxxx

(d) the representation of States in

Parliament, or

(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 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 "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).

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 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 1, having declared in its sub-Article (1) that India

"shall be a 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 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 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.- (1) Any law

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referred to in article 2 or article 3 shall

contain such provisions for the

amendment of the First 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 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". 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.

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

members nominated by the President, the Council of States

shall consist of not more than 238 "representatives" of States

and Union Territories. If an amendment were to increase or

decrease this composition, it would result in change in the

ratio of representation of States in Parliament.

The provision contained in Article 80 (1) (b), in so far as it

pertained to the maximum number of members constituting

the House has remained unchanged ever since it was adopted

in the Constitution by the Constituent Assembly on 26th

November, 1949. But this figure of seats of the representatives

of States (and Union Territories) was subject to allocation to

the States and Union Territories in terms of the Fourth

Schedule, as provided in Article 80 (2). The Fourth Schedule

provided for the allocation of seats in the Council of States and

the total number of seats indicated therein has varied from

time to time, subject to the ceiling of 238, as given in Article

80 (1) (b).

In the Fourth Schedule, as originally enacted, the seats

allocated to States were 205. By way of the Constitution

(Seventh Amendment) Act, 1956, 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 Goa, Daman and Diu Reorganisation Act,

1987 which came into effect on 30 May 1987, 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.

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

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has been pointed out that even the existing representatives of

the States affected by the reorganization were reflected by

name in the Constitutional amendments 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 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.

The amendment of the Constitution can affect

"representation of the States" in Parliament, within the

meaning of the proviso extracted above, in more ways than

one which we will presently show.

Article 80 (4) prescribes the manner of voting and

election of the representatives of States for Council of States in

the following terms: -

"The representatives of each state in the

Council of states shall be elected by the

elected members of the Legislative

Assembly of the State in accordance

with the system of proportional

representation by means of the single

transferable vote."

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

legislative Councils or by change in the system of proportional

representation, that would also have the effect of changing the

representation of the States.

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."

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.

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. 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" in Parliament.

The argument that the impugned amendment affects the

"representation" 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

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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

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 fill a seat in that House if he is "an

elector for any Parliamentary constituency"; that is to say, one

can get elected as people's representative in the House of the

People for a constituency in one particular State even though

one is an elector registered as such in a Parliamentary

constituency in another State.

He pointed out that the composition of the House of the

People, as per Article 81(1)(a), is different, since it consists of

"members chosen by direct election from territorial

constituencies in the States", such members not representing,

nor expected to represent, the States from which they are so

chosen. This is why the 'Qualifications for the membership of

the House of the People', as prescribed in Section 4 of the RP

Act 1951, have always permitted "an elector for any

Parliamentary constituency" to get chosen to fill a seat in the

House of the People.

The argument is that by the impugned amendment in

Section 3, the qualification for Membership of the Council of

States is now "equated" with that of the House of the People,

the only difference remaining being the manner of election, the

former by indirect election and the latter by direct election.

While Section 3 has been amended to substitute the

words "in that 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 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 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.

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 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.

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

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"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 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, 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

legislative power available to it under Article 84 (c).

Parity in the matter of qualification to the extent

concerning residence of a person seeking to be elected as

member of either House does not make one House duplicate of

the other. Their role, functions, powers or prerogatives,

especially in the matter of legislation, remain unchanged.

Mr. Nariman also urged that Article 80 of the

Constitution (Composition of the Council of States) be read in

contrast of Article 81 (Composition of the 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 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 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

(1) (b) and Article 80 (2), 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 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, the citizens of India, inhabitants of the States

and the Union Territories.

It has been argued that the principles underlying "the

House of the 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 territorial 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.

It has been submitted, the term "the Council of States" in

Articles 79 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

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House and that a person could claim to belong to a State only

by birth, domicile or residence. On this premise, it has been

submitted that some such visible nexus between the State and

the person seeking to be its representative is a must in the

scheme of the Constitution.

It is further the argument of the learned Counsel for the

petitioners 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, 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 Judicial Accountability v. UOI & Ors.

[(1991) 4 SCC 699] and P.V. 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:

"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.V.

Narasimha Rao's case (supra) have been relied upon:

"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 interpretation of the

provisions of Article 105(2) which would

enable a Member of Parliament to claim

immunity from prosecution in a

criminal 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

but would also be subversive of the rule

of law which is also an essential part of

the basic structure of the Constitution.

It is settled law that in interpreting the

constitutional provisions the court

should adopt a construction which

strengthens the foundational features

and the basic structure of the

Constitution. (See: Sub-Committee on

Judicial Accountability v. Union of

India (1991) 4 SCC 699 SCC at 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

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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).

It has been argued that if by electing a person as a

Member of the Council of States by a particular State

Assembly itself made that person a 'representative' of that

State then it was unnecessary to enact Section 3 of the RP Act.

Therefore, according to the argument, it has to be concluded

that the Provisional Parliament (which had also drafted and

enacted the Constitution), when enacting Section 3 of the RP

Act, had thought it necessary to define the "representative of

the State", with reference to his residence "in that State".

The above mentioned argument to the extent founded on

the principle of basic structure need not detain us any further

as it is the same argument as dealt with in the context of

federal structure, albeit with a slightly different shade.

Moreover, the link factor is retained by the impugned

amendments inasmuch as the candidate for the election to the

Council of States is now required to be an elector for

Parliamentary constituency. Therefore, the linking factor is

made broad based.

Article 80 shows that the Council of States consists of 12

Members nominated by the President and 238 representatives

of the States and Union Territories. The representatives fill

the seats in accordance with Article 80 (2). Both, the members

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.

Further answer to this argument can be found in Article

84 itself, which 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 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 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"

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 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 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

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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 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.

The reliance on the word "each" is misplaced. It fails to

notice as to why the word "each" was inserted in the Article in

the first place. Sub-Articles (4) & (5) of Article 80, in its

original form, read as under: -

"(4) The representatives of each State

specified in Part A or Part B of the First

Schedule in the Council of State shall be

elected by the elected members of the

Legislative Assembly of the State in

accordance with the system of

proportional representation by means of

the single transferable vote.

(5) The representatives of the State

specified in Part C of the First Schedule

in the Council of States shall be chosen

in such manner as Parliament may by

law prescribe."

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:-

"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.

Clause 3. - The amendments proposed in

Article 80 are formal and consequential.

The territorial changes and the formation

of new 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 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 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 one million. It is

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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 of Union

territories make extensive amendment of

articles 81 and 82 inevitable. The

provision in Article 81(1)(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 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 (1)(b) of the revised Article 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 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". 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 1 (2) and Article 4, the

provisions contained in Article 80 had to undergo

consequential amendments.

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(1) and then in Article 80(2) so as to specify the

number (to be elected) and the allocation of seats (to be

specified in the Fourth Schedule) respectively. In neither

clause the word "State" is qualified by the word "each". Since

sub-Article (4) and sub-Article (5) were meant to indicate the

manner of election by States of different categories, they were

created as separate provisions. If the word "each" had the

significance attributed during arguments by the writ

petitioners, it would have occurred not only in sub-Article (4)

in the context of Part A and Part B States, but also in sub-

Article (5) in the context of Part C States, inasmuch as States

of all categories represented different units of the Union of

India.

In the above view, the employment of the word "each"

preceding the word "State", in the context of representation in

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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. 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 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 States, does not appeal to us.

Person to have representative character before being

elected

It is the argument of the petitioners that the word

"representative" in the context of democracy requires two

things; i.e. (a) capacity to represent and (b) authority to

represent. They submit that only a member of a class can

represent the class in a system of self-governance.

It has been argued that the words "representatives of the

States" in Article 80 (1) (b) and (2) and the words

"representatives of each State in the Council of States" as

appearing in Article 80 (4) need to be interpreted in a 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).

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 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."

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 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 1 says that India

shall be a Union of States. Therefore, it is the submission of

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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.

It is further argued by the petitioners that the very fact

that Article 80 (4) provides for election by the elected members

of the Legislative Assembly of the State coupled with the fact

that in terms of Article 170, members of the Legislative

Assembly shall be those chosen by direct election from

territorial constituencies in the State and the further

requirement that each one of them is required to be an elector

for any Assembly constituency in the State in terms of Section

5 (c) of the RP Act, 1951 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; while Members of Legislative

Assemblies (MLAs) are directly elected, members of the

Council of States are indirectly elected by the people of the

State 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 in the State. Therefore, to be able to represent a

State, it is necessary that the person concerned shall be a

registered voter in the State.

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".

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 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 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 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) & (b) that relate to citizenship

of India, oath or affirmation inter alia of faithfulness and

allegiance to the Constitution and the prescription about

minimum age.

It has been contended that Article 80 (4), by using the

expression "representatives of each State" emphasizes that

person who is elected must first be qualified as a

representative of the State in question. If the qualification was

meant to originate from his being merely elected by any

particular State Assembly, the clause would have read: -

"The elected members of the Legislative

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Assembly of each State shall elect their

representative in the Council of States in

accordance with the system of

proportional representation by means of a

single transferable vote."

The Counsel has submitted that unlike Article 81, which

does not stipulate that a person elected to the House of the

People shall be from a territorial constituency in a particular

State so as to be the representative of such State in the House

of the People, 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 fact of election by particular State Assembly of any

"elector" in India cannot render that person as being

"qualified" to represent that State.

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 "ordinarily resident" in a constituency

only is entitled to be registered in the electoral roll of that

constituency.

He submitted that provisions of RP Act, 1950 and 1951

were in the nature of "further qualifications for membership",

as clarified through Notes on Clauses on what was enacted as

Section 3 of the RP Act, 1951, as published in the Gazette of

India, December 23, 1950-Part II-Sec.2, which reads as

follows:-

"Clauses 3 to 6 - Articles 84 and 173 of

the Constitution have laid down certain

qualifications for membership of

Parliament and of the State Legislatures

and have left it to Parliament to prescribe

such further qualifications as it may

consider necessary. Clauses 3 to 6 seek

to prescribe these further qualifications

for membership. (Emphasis supplied)

Section 4 of the RP Act, 1951 prescribes the

qualifications for membership of the House of the People. The

said provision generally requires a person seeking to fill a seat

in the House of the People to be "an elector for any

Parliamentary constituency". There was thus a material

difference between the qualification of domicile within the

particular State as prescribed for the Council of States and the

qualification of domicile within any Parliamentary

constituency in India as prescribed for the House of the

People. This was subject matter of debate in the provisional

Parliament on 11th 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.

It appears that in the course of the said debate it came

to be pointed out as incongruous as to why a candidate to the

Council of States should 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

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State concerned for the other House because it was the House

of the People.

It is the submission of the learned counsel that the

Parliamentary debates on the justification for distinction is

clearly indicative of the reason why the representative

character of the member elected to the Council of States was

defined, it being that the election was to the Council of States

and not to the House of the People; that is to say that a person

residing or working in Area "A", therefore, could not represent

Area "B", or for that matter any other place.

It is the contention of the Counsel that the impugned

amendment sets at naught the representative character of the

person elected, as grafted in the provision amended in the

form of his connection with the State he represents in the

Council of States, leaving it undefined either with reference to

"residence" (in the past or in the present), or to place of birth,

or to performance of public duties in the State whose

Assembly elects him to the Council of States.

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 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., 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 of

Statutes, 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, 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 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 meaning, so far as it

may be reasonably possible to do this, of

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what is found laid down. The provisions

whose meaning is under consideration

have, therefore to be examined before

applying any method of construction at

all. \005\005\005."

We endorse and reiterate the view taken in the above

quoted paragraph of the Judgment. It may be desirable to give

a broad and generous construction to the Constitutional

provisions, but while doing so the rule of "plain meaning" or

"literal" interpretation, which remains "the primary rule", has

also to be kept in mind. In fact the rule of "literal construction"

is the safe rule unless the language used is contradictory,

ambiguous, or leads really to absurd results.

Regarding the words in Article 80(4) of the Constitution,

viz., "the representatives of each State", as already stated, we

are not impressed with the submission that it is inherent in

the expression "representative", that the person, in order to be

a representative, must first necessarily be an elector in the

State. If this concept were to be stretched further, it might

also require birth in the particular State, or owning or having

rented property or belonging to the majority caste, etc. of that

State. Needless to mention, no such qualification can be

added to say that only an elector of that State can represent

that State. The "representative" of the State is the person

chosen by the electors who can be any person who, in the

opinion of the electors, is fit to represent them. There is

absolutely no basis for the contention that a person who is an

elector in the State concerned is more "representative" in

character than one who is not.

We do not find any contradiction, ambiguity, or absurdity

in the provisions of the law as a result of the impugned

amendment. Even while construing the provisions of the

Constitution and the RP Acts in the broadest or most generous

manner, the rule of "plain meaning" or "literal" interpretation

compels us not to accept the contentions of the petitioners.

Upon being given their plain meaning, the words

"representatives of the States" in Article 80 (1) (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

"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 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.

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: -

"A person shall not be qualified to be

chosen to fill a seat in Parliament

unless\005\005\005."

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 80 (1) (b) read with Article 80

(4) & (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 81(2) (b), 84, 101(2),

and 330 held as under: -

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"\005\005.. 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 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 Parliament unless he

satisfies the tests prescribed by its

clauses (a), (b) and (c). Here again the

expression "to fill 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 to the

House of the People he fills a seat in the

House as an elected representative of the

said constituency; and so the expression

"filling the seat" is naturally used

whenever the context so requires."

(emphasis supplied)

On the same analogy, it must be said that when a

candidate is elected by the electorate comprising of the

members of the Legislative Assembly of the State to represent

the State in the Council of States, he is elected and chosen as

"a representative of the State". The words "representative of

the State" do not in any manner connote that the

representative must also be an elector or a voter registered in

the State itself.

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. [(2001) 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 provisions of the

Constitution, in particular Articles 163 (1), 164 (1) (2) & (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 of and accountable to the

people of the State."

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 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

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at the level of the Union.

Members of the municipalities and boards, graduates,

teachers are required under Article 171 to elect a certain

percentage of members of the Legislative Council. It is not

necessary that the person elected must either be 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 & 173 and Sections 5 & 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

"from amongst themselves". Thus, the

use of the term "electorate", in Article

171(3) of our Constitution, could not, by

itself, impose a limit upon the field of

choice of members of the electorate by

requiring that the person to be chosen

must also be a member of the electorate."

Undoubtedly, Section 6 of the RP Act, 1951 continues to

require domicile within the State as a necessary qualification

for a person seeking to be elected as a member of Legislative

Assembly or the Legislative Council of the State. But, in view

of the above law laid down by this Court, from which we do

not find any good reason to make a departure in the case at

hand, there is no merit in the plea that the "representative of

the State" elected by the legislative assembly of the State must

also be an ordinary resident of the State just because the

electorate that is electing him are required by law 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 13D, 14, 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 13D 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 parliamentary constituency. Electoral rolls are

prepared basically for assembly constituencies and revised

year-wise. A conjoint reading of Sections 17, 18, 19 & 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.

In Pampakavi Rayappa Belagali v. B.D. Jatti &

Others [1971 (2) SCR 611], the election of the first

respondent to the Mysore Legislative Assembly had been

challenged, amongst others, on the ground that he had ceased

to be a person "ordinarily resident" within the Jamkhandi

constituency and thus questioning the validity of entry of his

name on the electoral roll for that constituency. The High

Court had rejected the election petition including on the

aforesaid ground. This Court while dismissing the appeal

against the judgment of the High Court observed, inter alia,

that the conditions of registration as an elector in the electoral

roll, as provided in Section 19 of the RP Act, 1950 includes the

condition that the person must be "ordinarily resident" in the

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constituency and that the meaning of the expression

"ordinarily resident" is given in Section 20 and further that

"the conditions about being ordinarily resident in a

constituency for the purpose of registration are meant for that

purpose alone\005\005.".

The qualification of "ordinarily resident" is provided for

registration as a voter in a general election for deciding the

place of voting by an elector and for the preparation of

electoral rolls. Under our constitutional scheme, Parliamentary

or Assembly constituencies are territorially divided and hence

territorial link is provided for the voter, but importantly not for

the candidates.

The expression "representative of each State" in Article

80 (4) of the Constitution is not a qualification and cannot be

read as a condition precedent for being elected. The

Constitution has dealt with "qualifications" exclusively in

Article 84 of the Constitution, as would also be clear from the

marginal note besides the contents of the provision itself.

We agree with the submission that by definition, the

word "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 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.

Panchayati Raj Amendment \026 territorial link

Mr. Nariman has submitted that there is a constitutional

recognition of the concept of territorial link of the members of

the Council of States (as representing the particular State in

the Council of States).

He buttressed this contention by referring to the 73rd and

74th 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 243B and Article 243Q). Article 243C (Composition of

Panchayats), through clauses (c) & (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 States and

the members of the Legislative 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, 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".

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

Panchayat or Municipal area in that State for purposes of local

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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.

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 of the

People and the Legislative Assemblies (as indeed, the

Legislative 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 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 aspirations, thereby

strengthening democracy.

Then, the enabling provisions may not have uniform

application. Their 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 State or

Union Legislature for representation in the Panchayat or

municipality depends on various factors that may or may not

exist vis-`-vis each such member. To elaborate, it can be said

that if there can be a member of the Council of States

registered as an elector within a Panchayat area or municipal

area there can also be a member of the Council of States not

so registered as an elector within a Panchayat area or

municipal area. Moreover, the relevant clauses do not apply

only to elected members of the Council of States. Thus, even a

nominated member of the Council of States qualifies to be a

representative in the Panchayat or a municipality if he fulfills

the qualification prescribed. So, a conclusion in respect of the

elected "representatives of the State" in the Council of States

cannot be reached on such basis.

Further, these provisions generally provide for the

qualifications of various categories of persons, which happen

to include the members of the Council of States, to be

representatives in a Panchayat or municipality, and share in

local self governance. Since the members of the Council of

States were one of the several sources being tapped for the

purpose of providing for representation of different interest

groups in the deliberative wing at the local level, it was

incumbent to lay down some method of selection.

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 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 additional

qualification.

Thus, the argument based on the 73rd and 74th

Constitutional Amendment Acts 1992 which introduced Part

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IX and Part IX-A to provide for Panchayats and Municipalities

as institutions of self government is of no 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 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 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 petitioners is that the provision

contained in Section 3 of the RP Act, 1951, prior to the

impugned amendment, provided 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.

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 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 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 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 '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 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 allegiance of the Senators in

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Canada is usually to the party which appoints them.

Rajya Sabha resembles the American Senate insofar as it

is a continuing body. Rajya Sabha, however, differs from the

US Senate insofar as its members are not elected directly by

the States and there is no equality of representation of the

States. Rajya Sabha resembles the Australian Senate insofar

as both are based on the principle of rotation.

The point which we would like to emphasize here is that

even in countries where strict federalism exists, with the

passage of time, the original role of the Senate of guarding

interests of the States as political units has largely

disappeared. With globalization, the US Senate now functions

as a national institution rather than as a champion of local

interests. This transformation has taken place in US due to

several factors such as direct election of Senators by the

people of a State, development of strong political parties

advocating national programmes and development of national

integration, etc.

Similarly, in India, after 1990, due to relaxation of

central economic control, the conceptual and theoretical

framework of federalism has undergone a sea-change. The

concepts of the words 'residence' and 'representative' are not

fixed concepts, therefore, they have to change with time. The

constitutional framers have kept that flexibility in mind, they

have left it to the Parliament to decide the qualification for

membership of the Parliament and, while deciding the

qualification, the Parliament has to take into account the

contextual scenario. There cannot be one uniform, consistent

and internal definition or connotation of these concepts.

These concepts undergo changes with the passage of time.

They cannot be decided etymologically by reference to

dictionaries.

Sub-Section (1) of Section 20 of the RP Act, 1950 clarifies

that mere 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.

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 (1A) provides that temporary absence of a

person from a particular place does not result in cessation of

his ordinary residence there.

Sub-Sections (1B) (3) and (4) protect the ordinary

resident character of an individual vis-`-vis the place where he

would be ordinarily residing but for official engagements. Sub-

Section (1B) takes care of legislators' absence from their

respective constituencies in connection with responsibilities of

the 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.

Sub-Sections (5) and (6) of Section 20 of RP Act, 1950

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).

Lexicon refers to Cicutti 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

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found "ordinarily", in the sense of usually or habitually and

with some degree of continuity, but whether the quality of

residence is "ordinary" 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.

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.

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 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

State in Parliament.

When voting for a candidate in an election, perception of

his skills as a legislator, his knowledge of State affairs, his

services to the constituency he seeks to represent and the

satisfaction or confidence in having him as the representative

of the electorate are enough considerations or qualifications.

These considerations undoubtedly are certainly of more weight

than transitory or often illusory concept of "residence".

This Court would refrain from passing comment on the

argument of the Union of India that it is a matter of common

knowledge that, before the impugned amendment was brought

about, in the anxiety to secure good candidates, the

requirement of residence was being bypassed usually by

illegitimate subterfuges like being compelled to make false

declarations about their real residence or further that the

experience had shown that the qualification of domicile was

proving to be an obstacle in getting the right members into the

Council.

Suffice it to say here that our electoral system needs to

be rendered free from all known vices and so there is no

reason why Parliament should be denied the opportunity to

bring in such legislation as is deemed by it, in its wisdom, as

would plug the possible holes of abuse, for which Parliament

has the necessary legislative competence.

Article 80 (4) is not being correctly read by the petitioners

when they 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 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

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if it were to be worded thus: -

"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".

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 to the members and do not import any further concept

or requirement of residence in the State.

Absence of Justification \026 Objects & Reasons

Another submission urged is that the Statement of

Objects and Reasons 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" it had been decided to do away with the

requirement of residence in a particular State or Union

Territory for contesting 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 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

State or there was difficulty in applying the words 'ordinarily

resident', the statute afforded the remedy in Section 20 (7) of

Representation of the People Act, 1950, giving authority to the

Central Government to frame rules, in consultation with the

Election Commission, to determine the questions arising.

Besides, it has been argued, the decision of the Election

Officer in above regard, under the existing law, is rendered

final and cannot be raised again in an Election Petition, as

held by a Constitution Bench in Hari Prasad Mulshanker

Trivedi v. V.B. Raju & Ors. [1974 (3) SCC 415].

It has been argued that the reasons given in the

Statement of Objects and Reasons for the Amendment Act do

not provide any rational justification for the impugned

amendment. The problem that some persons, though not

ordinarily resident in the State, yet manage to get themselves

registered as voters in a Parliamentary Constituency of the

State and get elected to the Council of States, needs to be

tackled by making more effective the provision so as to prevent

such registration, if any, and for cancellation of such

registration and deletion of their names from the voters list.

This problem, 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.

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The petitioners further argue that the reasons given in

affidavit in reply, by Union of India, to justify the impugned

amendment for amending Section 3 are different from the

reasons given in the Statement of Objects and Reasons for the

Bill.

The Counter Affidavit of the Union of India states that the

members of Legislative Assemblies are in the best position to

decide who would best represent their States' interest in the

Rajya Sabha. The petitioners submit that this is a doubtful

proposition having regard to what the Ethics Committee of the

Council of States said in its report about large sums of money

being the motivating factor in electing members of the Council

of States.

The petitioners also lament that the well considered view

expressed by an eminent body like the National Commission

on Working of the Constitution has been unreasonably

brushed aside. The Commission in Paragraph 5.11.5 of its

report did express its view that the Parliamentary legislation

that had been initiated seeking to do away with the domiciliary

qualification for being chosen as a representative of any State

or Union territory in the Council of States would affect "the

basic federal character of the Council of States" and that in

order to maintain the said basic federal character of the said

House, "the domiciliary requirement for eligibility to contest

elections to Rajya Sabha from the concerned State is

essential". Union of India has stated that it respectfully differs

from the views expressed by the Commission.

We need not go into the question whether the views of the

National 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 views of the Commission were

founded on that premise.

In Hari Prasad Mulshanker Trivedi v. V.B. Raju

(supra), relied upon by the petitioners, this Court was

concerned with the question whether the election of

respondent numbers 4 & 5 as members of the Council of

States from the State of Gujarat which was challenged by way

of an election petition, was 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 (1)(e) of RP Act,

1951, they were not eligible to become candidates 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, this Court

observed: -

"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 Court in Kabul Singh

case that Sections 14 to 24 of the 1950

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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 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 100(1) (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 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:

"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 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, 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

requirement from the qualifications for membership of

Parliament is opposed to law or common sense.

Union of India would refer to the Registration of Electoral

Rules, 1960 as the rules framed under Section 20 of the RP

Act, 1950. The said rules, generally speaking, provide for the

form and languages of the electoral rolls; preparation thereof

in parts; order of names; forms in which declaration about the

claim and fulfillment of qualification is required to be made;

information to be supplied by occupants of dwelling houses;

access to the registers; publication of draft electoral rolls and

publicity to be given thereto; lodging of claims and objection

with manner and forms prescribed in that regard; procedure

for process, rejection or acceptance of claims and objections

after or without inquiry; inclusion or deletion of names; final

publication of electoral rolls; appeals or revisions against the

orders passed; identity cards etc. We have not been able to

find any specific provision in these rules as could be held to be

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a guide to the concerned authorities for determining in a

particular fact situation if an individual is, or is not,

"ordinarily resident" of a particular place at a particular point

of time.

We must hasten to add that we are not saying that it is

not possible to give a precise definition of the expression

"ordinarily resident" for purposes mentioned in the electoral

law. We would also not make an attempt to give such

definition in these proceedings since that would be a matter

within the domain of the Legislature. What we want to

emphasize is only the fact that the Central Government faced

difficulty in giving a precise definition of the expression and

candidly admitted the difficulty while introducing the

amendment.

In this context, what could be open to the Court is to

examine whether the difficulty in giving precise definition was

not a bona fide reason in view of the meaning of the expression

given in Section 20 of the RP Act, 1950 or in the face of the

dictionary meaning by which the said expression can be

generally understood. We have already found that the

provision in question leaves much to be desired and the

guidance provided by law is deficient in that it does not give a

clear cut definition as to how the question of ordinary

residence of an individual is to be determined.

Article 84 of the Constitution provides for qualifications

for membership of Parliament. The requirements in Article 84

for a person to fill up a seat in either House of Parliament,

including the Council of States, are: -

(i) The person elected should be a citizen of India;

(ii) He must subscribe an oath of affirmation as

per the form set out in the Third Schedule;

(iii) In the case of Council of States he must be not

less than 30 years of age;

(iv) He must possess such other qualifications as

may be prescribed in this behalf by or under

any law made by Parliament.

The disqualifications for being chosen as, or for being, a

member of either House of Parliament are contained in Article

102. A person incurs disqualification if he: -

(i) holds any office of profit;

(ii) is of unsound mind and stands so declared by

a competent court;

(iii) is an un-discharged insolvent;

(iv) is not a citizen of India or has voluntarily

acquired a citizenship of a foreign State etc;

(v) is so disqualified under any law made by the

Parliament.

The Constitution, thus, has no requirement that a person

chosen to represent a State in the Council of States must

necessarily be a voter in that State itself. The Constitution,

after prescribing certain qualifications and disqualifications,

has left it to the Parliament to provide other such

qualifications or disqualifications. The Parliament had initially

prescribed an additional qualification that a person so chosen

should be an elector for a Parliamentary constituency in the

State. After working out this provision for more than five

decades, the Parliament in its legislative wisdom, decided

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through the impugned amendment that a person chosen to be

a representative of a State in the Council of States need not

necessarily be an elector within the particular State or, in

other words he must be an elector in any parliamentary

constituency in India, but not necessarily in the concerned

State.

Union of India has submitted that the Parliamentary

Debates and the Report of the Standing Committee indicate

that the experience of the past fifty years has been considered.

According to its submissions, the considerations which

weighed with the Parliament, inter alia, included the fact that

the Constitution does not prescribe any mandatory

requirement that the elected member should be an elector in

the State from where he is elected.

Union of India would also claim that several persons

whose presence could add to the quality of debates and

proceedings in the Council of States had, under the

dispensation before amendment, been constrained to enroll

themselves as voters in another State just in order that they

could be elected from such State. It has been further

submitted that unless they did so, some States would remain

unrepresented in the Council of Ministers due to the non-

availability of such talented members of these States in the

House of the People and the Council of States and, thus, the

opening out of the residential provision was meant to help in

this regard. The Constitution under Article 19(1)(e) guarantees

the freedom to a citizen to choose a residence of his choice.

There are several cases of elected representatives who may

have multiple residences and may have to choose any one of

them as a matter of convenience where to vote.

The cases of persons maintaining multiple residences at

several places would be few and far between. Even otherwise

that should not have posed any problem since the requirement

of law was that of ordinary residence which would not apply to

each of the several residences of a person.

We are not concerned with the political compulsions or

considerations that are implied by some of the above-

mentioned submissions of the Union of India and others

supporting its stand. It is not necessary for us to examine the

plea of the Union of India as to the competence or talent of, or

the addition to the quality of debates or discussion in

Parliament due to participation by, certain specific members of

Parliament reference to whose names was sought to be made

by the learned counsel in the course of arguments contesting

the contentions of the writ petitioners.

Suffice it to say here that the submissions on both sides

would show that the erstwhile arrangement in the law, that is

the arrangement prior to the impugned amendment, to

determine the question as to whether a particular person is

ordinarily resident of a particular place or not had not worked

satisfactorily. The law does not give a clear concise definition

or guidance in this regard. The declaration of the 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. We mention this trend because

its existence was alleged by some counsel and not denied by

anyone. This undoubtedly could not be a happy state of

affairs.

Nonetheless, if the Parliament in its wisdom has chosen

to do away with the domiciliary requirement as qualification

for contesting an election to fill a seat as representative of a

particular State in the Council of States, fault cannot be found

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with such decision of the Parliament on the ground that

difficulty to define what was meant by the expression

"ordinarily resident" was not an honest ground. This, for the

simple reason that there was nothing in the Constitution or

the law at any point of time rendering the domiciliary

requirement as crucial qualification for purposes particularly

of the Council of States.

We must, however, add here that while the impugned

amendment 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 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.

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 in relation to the

Statement of Objects and Reasons of the impugned

amendment.

Rendering it a case of 'No qualification' - Abdication of its

Function by Parliament

The counsel for the petitioners have argued that the

impugned amendment has dispensed with the only

qualification (the residential qualification) that had been built

in by the Parliament in the provision to give meaning to the

representative character of the person chosen to be the

member of the Council of States, and at the same time failed

to define or prescribe any other criteria which Parliament

regards as relevant for the person elected being a

"representative" of that State. They would submit that the

marginal note "Qualification for the Membership of Council of

States" which had been retained for Section 3 of the RP Act,

1951 had been rendered meaningless.

The learned counsel, Mr. Nariman, would grant that,

under Article 84 (c) read with Article 327 and Entry 72 of the

Union List, it is within the legislative competence of Parliament

to define or modify the qualifications for the Member of

Parliament by making law from time to time. The Petitioners

would even concede that the only way of ensuring the

representative character may not be by the State being

represented by a person "ordinarily resident" in that State

which, according to them, was the original method adopted, as

reflected in Section 3 of RP Act, 1951 but other links can be

found. Thus, it is not disputed that the connection of

"residence" could from time to time be changed or amended

when circumstances so demanded.

The argument, however, is that Section 3 could be

amended by Parliament only so long as it mentioned some

qualification for representation of person to be elected as

member of Council of States. According to the petitioners, this

must be done by putting in position some other appropriate

method of ensuring representation of a particular State in the

Council of States.

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It has been submitted that the impugned amendment

had failed to provide alternative additional qualification, since

any citizen of India, resident anywhere in India, can now be

elected by any State Assembly even when he is ordinarily

resident, and even when his registration as an elector is,

outside that State. No further additional qualifications are

provided to indicate his or her usefulness in the debates or

discourses to take place in the Council of States.

It is the contention of the petitioners that on the

assumption that there was need for laying down a criteria

other than the requirement of residence in a particular State,

some different or alternative qualification or method of

representation could have been prescribed; such as birth,

education, carrying on business or working for gain in the

place for a period prescribed or doing philanthropic or

charitable work in a State by persons residing outside the

State. They argue that some roots or some connection had to

be ensured to be existing so as to maintain the representative

character of the person to be elected as representative of the

particular State.

But, it is the grievance of the petitioners that by the

impugned amendment a 'qualification' has been introduced

which is not a qualification at all, and which only means that

anyone in India who is on the electoral roll of any

Parliamentary Constituency in India can be chosen by any

State Assembly in India as a representative of that State in the

Council of States.

Developing the above argument further, Mr. Nariman

submitted that, after the impugned amendment, there is "in

effect" no qualification prescribed by Parliament for the person

elected being a representative of the particular State, Assembly

of which has elected him, since he may be an elector in any

Parliamentary Constituency "in India", which according to the

Counsel is not a qualification for the person chosen by the

particular State Assembly to be a "representative of" that

State. It is now left to the entire subjective determination of

each State Assembly, to elect any one, even one who is an

elector (i.e. ordinarily resident) in any other State or one who

has no connection whatsoever with the State that chooses him

to be its representative in the Council of States.

It has been argued that by the impugned amendment,

Parliament has whilst purporting to set up "qualification" for

membership to the Council of 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

1951 by defining as to who would be the representatives of

each State in the Council of States, but this has now been left

to be determined in each individual case by the majority of

Members of the State Assembly who elect a particular person

i.e. irrespective of whether or not the person chosen has any

connection with the State by birth, residence, performance of

public duties or otherwise.

The argument is that the will of the State assemblies on

the issue as to who qualifies to be a representative of the State

within the meaning of the expression used in Article 80 is not

sufficient or good guide since the question of qualifications

had been left by the Constitution to be prescribed by the

Parliament and not the members of State Legislative

Assemblies. To deny to the State assemblies reference to some

criteria prescribed by law by Parliament totally negates one

important aspect of federation in the Constitution viz. the

effective representation of States in the Council of States.

The arguments of the petitioners on above lines do not

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impress us. It is all a matter relating 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 alia, contained in Articles 80

and 327. Article 80 (4) provides that elections to the Council of

States shall be by a system of proportional 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.

The above provisions leave no room for doubt that the

Constitution recognized the need for changes in the law

relating to elections from time to time and entrusted

Parliament with the responsibility, as also the requisite power,

to bring in legislative measures as and when required in such

regard, which would include the power to amend the existing

measures. Should there be any doubt entertained by any

quarter in this respect, reference may be made to the case of

Hari Prasad Mulshanker Trivedi v. V.B. Raju & Ors.

[(1974) 3 SCC 415: (1974) 1 SCR 548], wherein it has been

held by this Court that:-

"Article 327 gives full power to

Parliament subject to the provisions of

the Constitution to make laws with

respect to all matters relating to or in

connection with elections including the

preparation of electoral rolls".

Parliament has the power, rather an exclusive one, under

Article 246 to make laws with respect to any of the matters

enumerated in the Union List of the Seventh Schedule. In

exercise of the powers conferred on it under Article 246 read

with Articles 84 & 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 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 in accordance with the provisions in

that behalf contained in the Fourth Schedule. In Article 80 (4),

it is provided that the representatives of each State shall be

elected by the elected Members of the Legislative Assembly of

that State in accordance 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 "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 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

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mentioned by the petitioners, such 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 Articles 80 or 84.

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 it the Constitutional 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 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.

In N.P. Ponnuswami v. Returning Officer, Namakkal

Constituency & Ors. [1952 SCR 218], this Court noticed

with approval the decision of Privy 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:

"(1) 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 and

determine all 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."

(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

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) 1 SCC 691], in following

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words:-

"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 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

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 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 election to

Parliament or the State Legislature except

as provided by the Representation of the

People Act, 1951 and again, no such

election may be questioned except in the

manner provided by the Representation

of the People Act. So the Representation

of the People Act has been held to be a

complete and self-contained code within

which must be found any rights claimed

in relation to an election or an election

dispute. ........."

(emphasis supplied)

The Constitution by Article 84 has prescribed

qualifications for membership of either House of Parliament.

Article 84 (c) does not make it compulsory for Parliament to

prescribe any qualification other than those prescribed by

Clauses (a) & (b). Parliament may or may not prescribe some

such qualifications, and having prescribed some may repeal

them whenever it so desires. It is difficult to accept the

argument that once the Parliament prescribes a qualification,

it cannot revoke or repeal it. There is no such limitation on

Parliament's legislative power, which is confirmed by Entry 72

of the Union List in the Seventh Schedule. The language of

Clause (c) of Article 84 creates a power and not a duty. If it is

not bound to prescribe any additional qualification, it is also

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not bound to provide a substitute for the one done away with.

The thrust of the argument of the 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 contend that the "character" of the House would

consequently stand altered.

What has been essentially done by the 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. 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.

The argument that the amended Section 3 of RP Act,

1951 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 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. 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 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.

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 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 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. It does not

transgress the provisions of Part III 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.

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Issue No.II : Secrecy of Voting

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 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", 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 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

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 of Rajya Sabha is an essential part of

democracy that is based on free and fair elections. The voters

should have freedom of expressing their view through their

votes. The impugned amendment violates the right of secrecy

by resorting to open ballot system that is nothing but a

political move by clique in political parties for their own

achievement.

It is contended that the impugned amendments violate

the Fundamental Right under Article 19(1)(a) of the

Constitution as well as the provisions in the Representation of

the People Act, 1951, Universal Declaration of Human Rights

and International Covenant on Civil and Political Rights. The

petitioners urge that Human Rights contained in Universal

Declaration of Human Rights and International Covenant on

Civil and Political Rights may be taken in aid of Fundamental

Rights to elucidate them and to make them more effective, 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(1)(a) of the Constitution of India.

Submission of Union of India on Open Ballot & Secrecy

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 Ethics Committee of the Parliament in its

report dated 1st 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 provisions contained in

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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".

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 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".

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-voting in the

elections for Rajya Sabha and the

Legislative Councils in States. It 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

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 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 elections".

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 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 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 be received by proxy.

Provided that the votes at every

election to fill a seat or seats in the

Council of States shall be given by open

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ballot."

There were two other provisions of RP Act, 1951 that

were amended by Act 40 of 2003, which changes have been

described as amendments consequential to the amendment

made to Section 59. These others provisions also need to be

noticed at this stage.

Part VI of the RP Act, 1951 relates to "Disputes Regarding

Elections". The election petitions lie under these provisions to

the High Courts. Chapter III of Part VI relates to the "Trial of

Election Petitions". Section 94 falling under this Chapter, as

originally enacted read as under :

"Secrecy of voting not to be infringed \026

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 amended provision now reads as under: -

"Secrecy of voting not to be infringed \026

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 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: -

"128. Maintenance of secrecy of voting.

\026 (1) Every officer, clerk, agent or other

person who performs any duty in

connection with the recording or counting

of votes at an election shall maintain, and

aid in maintaining, the secrecy of the

voting and shall not (except for some

purpose authorized by or under any law)

communicate to any person any

information calculated to violate such

secrecy.

(2) Any person who contravenes the

provisions of sub section (1) shall be

punishable with imprisonment for a term

which may extend to three months or

with fine or with both."

Act 40 of 2003 has added a proviso to sub-section (1) so

as to carve out an exception in relation to the election to the

Council of States. After amendment, sub-section (1) of Section

128 reads as under :

"128. Maintenance of secrecy of

voting.\026 (1) Every officer, clerk, agent or

other person who performs any duty in

connection with the recording or counting

of votes at an election shall maintain, and

aid in maintaining, the secrecy of the

voting and shall not (except for some

purpose authorized by or under any law)

communicate to any person any

information calculated to violate such

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secrecy.

Provided that the provisions of this sub-

section shall not apply to such officer,

clerk, agent or other person who performs

any such duty at an election to fill a seat

or seats in the Council of States."

The cumulative effect of the amendments to Sections 59,

94 and 128 of RP Act, 1951, brought about by Act 40 of 2003

thus is that the elections for filling up a seat in the Council of

States is now to be held "by open ballot". The requirement of

maintenance of secrecy of voting is now made subject to an

exception mentioned in the proviso.

Free and Fair Elections

The learned Counsel representing the petitioners, while

arguing on the challenge to the impugned amendment

respecting the secrecy of ballot in the election to fill the seats

of the representatives of the States in the Council of States

again referred to the 'basic structure' theory and submitted

that democracy was part of the basic features of the

Constitution. They would submit that free and fair election

was a concept inherent in the democratic 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 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 be any doubt

still lurking in any mind, the following cases can be referred

to, with advantage, in this context.

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.

In the same case, Shelat & 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 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

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 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

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system in which people holding opposing view to one another

can be candidates and invite the electorate to vote for them".

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 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: -

"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 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.

Democracy can indeed function 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 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, 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

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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 \027 no amount of

rhetoric or voluminous

discussion can possibly

diminish the overwhelming

importance 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"."

The Court spoke in Paragraph 23 about the philosophy of

election in a democracy, which reads as under: -

"Democracy is government by the

people. It is a continual participative

operation, not a cataclysmic,

periodic exercise. The little man, in

his multitude, marking his vote at

the poll does a social audit of his

Parliament plus political choice of

this proxy. Although the full flower

of participative Government rarely

blossoms, the minimum credential

of popular Government is appeal to

the people after every term for a

renewal of confidence. So we have

adult franchise and general

elections as constitutional

compulsions. "The right of election

is the very essence of the

constitution" (Junius). It needs little

argument to hold that the heart of

the Parliamentary system is free and

fair elections periodically held,

based on adult franchise, although

social and economic democracy may

demand much more."

(emphasis supplied)

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: -

"\005\005\005(2)(a) The Constitution

contemplates a free and fair election and

vests comprehensive responsibilities of

superintendence, direction and 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

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thereof. Firstly, when Parliament or any

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 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

Commission shall be responsible to the

rule of law, act bona fide and be

amenable to the norms 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 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.

\005\005\005\005.."

(emphasis supplied)

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: -

"\005\005An 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. \005\005 The goal on

the constitutional horizon being of

democratic republic, a free and fair

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.

\005\005".

(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: -

"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

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also adjudication of disputes

relating to subsequent

disqualifications by an independent

authority\005"

(emphasis supplied)

That Parliamentary 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:

"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."

In the case reported as Union of India v. Association

for Democratic 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 of government"; (b) the

election to the House of the People and

the Legislative Assembly is on the basis of

adult suffrage, that is to say, every

person who is a citizen of India and who

is not less than 18 years of age on such

date as may be fixed in that behalf by or

under any law made by the appropriate

legislature and is not otherwise

disqualified under the Constitution or

any law on the ground of non-residence,

unsoundness of mind, crime or corrupt

or illegal practice, shall be entitled to be

registered as a voter at any such election

(Article 326); (c) holding of any asset

(immovable or movable) or any

educational qualification is not the

eligibility criteria to contest election; and

(d) under Article 324, the

superintendence, direction and control of

the "conduct of all elections" to

Parliament and to the legislature of every

State vests in the Election Commission.

The phrase "conduct of elections" is held

to be of wide amplitude which would

include power to make all necessary

provisions for conducting free and fair

elections."

(emphasis supplied)

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 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

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includes the right that a voter shall be able to cast the vote

according to his choice, free will and without fear, 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 if

the election is to be held on the principle of "secret ballot".

These submissions need elaborate examination.

Right to vote \026 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 contained in Article 80 (4), is a

Constitutional right, if not a Fundamental right.

Reliance has been placed in this context by the

petitioners on the Union of India v. Association for

Democratic Reforms and Anr. (supra) wherein this Court

was considering the right of the voter to know about the

candidates contesting election. Having found that such a right

existed, it was observed in Paragraph 22 as under: -

"\005..In democracy, periodical elections are

conducted for having efficient governance

for the country and for the benefit of

citizens \027 voters. In a democratic form of

government, voters are of utmost

importance. They have right to elect or re-

elect on the basis of the antecedents and

past performance of the candidate. The

voter has the choice of deciding whether

holding of educational qualification or

holding of property is relevant for electing

or re-electing a person to be his

representative. Voter has to decide

whether he should cast vote in favour of a

candidate who is involved in a criminal

case. For maintaining purity of elections

and a healthy democracy, voters are

required to be educated and well

informed about the contesting

candidates\005\005." (emphasis supplied)

In Paragraph 46 of the judgment, the legal and

constitutional position emerging from the discussion was

summed up thus: -

"\005\005..

4. To maintain the purity of elections and

in particular to bring transparency in the

process of election, the Commission can

ask the candidates about the expenditure

incurred by the political parties and 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 country would have basic

elementary right to know full particulars

of a candidate who is to represent him in

Parliament where laws to bind his liberty

and property may be enacted.

5. The right to get information in

democracy is recognised all throughout

and it is a natural right flowing from the

concept of democracy. At this stage, we

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would refer to Article 19(1) and (2) of the

International Covenant on Civil and

Political Rights, which is as under:

"(1) Everyone shall have the right to

hold opinions without interference.

(2) Everyone shall have the right to

freedom of expression; this right shall

include freedom to seek, receive and

impart information and ideas of all

kinds, regardless of frontiers, either

orally, in writing or in print, in the

form of art, or through any other

media of his choice."

\005\005\005

7. Under our Constitution, Article

19(1)(a) provides for freedom of

speech and expression. Voter's

speech or expression in case of

election 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 \027 citizen's) right

to know antecedents including

criminal past of his candidate

contesting 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)

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 decisions 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 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, 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 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 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)

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(supra), need to be borne in mind: -

"\005\005\005Such a voter who is otherwise

eligible to 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 III. \005\005\005..If any statutory

provision abridges fundamental right,

that statutory provision would be void.

\005\005\005.. 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. \005\005\005."

In same case, P.V. Reddi J., in his separate judgment

observed as under in Paragraph 94: -

"\005\005\005\005 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. \005\005\005\005Nothing is therefore more

important for sustenance of democratic

polity than the voter making an

intelligent and rational choice of his or

her representative. For this, 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. \005\005\005The voter/citizen

should have at least the basic

information about the contesting

candidate, such as his involvement in

serious criminal offences. \005\005\005An

enlightened and informed citizenry would

undoubtedly enhance democratic values.

Thus, the availability of proper and

relevant information about the candidate

fosters and promotes the freedom of

speech and expression both from the

point of view of imparting and receiving

the information. \005\005\005\005 I would say that

such information will certainly be

conducive to fairness in election process

and integrity in public life. The disclosure

of information 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

information is publicized and openly

debated."

(emphasis supplied)

In Paragraph 95, he proceeded to observe as under: -

"\005\005. As observed by this Court in Assn.

for Democratic Reforms case a voter

"speaks out or expresses by casting vote".

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Freedom of expression, as contemplated

by Article 19(1)(a) which in many respects

overlaps and coincides with freedom of

speech, has manifold meanings. It need

not and ought not to be confined to

expressing something in words orally or

in writing. The act of manifesting by

action or language is one of the meanings

given in Ramanatha Aiyar's Law Lexicon

(edited by Justice Y.V. Chandrachud).

\005\005. Having regard to the comprehensive

meaning of the phrase "expression",

voting can be legitimately regarded as a

form of expression. Ballot is the

instrument by which the voter expresses

his choice between candidates or in

respect to propositions; and his "vote" is

his choice or election, as expressed by his

ballot (vide A Dictionary of Modern Legal

Usage, 2nd Edn., by A. Garner 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 settled and it needs no emphasis

that the fundamental right of freedom of

speech and expression should be broadly

construed and it has been so construed

all these years. In the light of this, the

dictum of the Court that the voter

"speaks out or expresses by casting a

vote" is apt and well founded. I would

only reiterate and say that freedom of

voting by expressing preference for a

candidate is nothing but freedom 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 (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: -

" \005\005 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

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 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

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part of any fundamental right, remains to

be squarely met. Here, a distinction has

to be drawn between the conferment of

the right to vote on fulfilment of requisite

criteria and the culmination of that right

in the final act of expressing choice

towards a particular candidate by means

of ballot. Though the initial right cannot

be placed on the pedestal of a

fundamental right, but, at the stage when

the voter goes to the polling booth and

casts his vote, his freedom to express

arises. The casting of vote in favour of

one or the other candidate tantamounts

to expression of his opinion and

preference and that final stage in the

exercise of voting right marks the

accomplishment of freedom of expression

of the voter. That is where Article 19(1)(a)

is attracted. Freedom of voting as distinct

from right to vote is thus a species of

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.

\005\005."(emphasis supplied)

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 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 constitutional right besides that it

is also a facet of fundamental right under Article 19(1)(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 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 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.

Arguments based on Legislative Privileges and Tenth

Schedule

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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

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(1)(a), freedom of voting is Constitutionally guaranteed to a

Member of a Legislative Assembly by Article 194 (1) & (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.1

of 1964 [(1965) 1 SCR 413] and Tej Kiran Jain & Ors. V. N.

Sanjiva Reddy & Ors. [(1971) 1 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 105 that pertain to "Powers, privileges, etc., 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.\027(1)

Subject to the provisions 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 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 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.

(4) The provisions of clauses (1), (2) and

(3) shall apply in relation to persons who

by virtue of this Constitution have the

right to speak in, and otherwise to take

part in the proceedings of, a House of

Parliament or any committee thereof as

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they apply in relation to members of

Parliament."

"194. Powers, privileges, etc., of the

Houses of Legislatures and of the

members and committees thereof.\027(1)

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 in the Legislature of every

State.

(2) No member of the Legislature of a

State shall be liable to any proceedings in

any court in respect of anything said or

any vote given by him in the Legislature

or any committee thereof, and no person

shall be so liable in respect of the

publication by or under the authority of a

House of such a Legislature of any report,

paper, votes or proceedings.

(3) In 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 committees immediately

before the coming into force of Section 26

of the Constitution (Forty-fourth

Amendment) Act, 1978].

(4) The provisions of clauses (1), (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

Legislature of a State or any committee

thereof as they apply in relation to

members of that Legislature."

In Special Reference No.1 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. 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 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.

This Court found that Article 194 (1) 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

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of the Legislature" and that while interpreting the said clause

"it is necessary to emphasize that the provisions of the

Constitution 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 (1)

"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."

In Tej 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 105(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 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.1 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 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 105 (2)

was to what was relevant to the business of Parliament and

not to something that was utterly irrelevant.

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 alia in

respect of "anything said ... in

Parliament". The word "anything" is of the

widest import and is equivalent to

"everything". The only limitation arises

from the words "in Parliament" which

means during the sitting of Parliament

and in the course of the business of

Parliament. We are concerned only with

speeches in Lok Sabha. Once it was

proved that Parliament was sitting and its

business was being transacted, anything

said during the course of that business

was immune from proceedings in any

Court this immunity is not only complete

but is as it should be. It is of the essence

of parliamentary system of Government

that people's representatives should be

free to express themselves without fear of

legal consequences. What they say is only

subject to the discipline of the rules of

Parliament, the good sense of the

members and the control of proceedings

by the Speaker. The Courts have no say

in the matter and should really have

none."

(emphasis supplied)

It is the contention of the learned counsel that the same

should be the interpretation as to the scope and tenor of the

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provision contained in Article 194 (2) concerning the privileges

of the Members of the Legislative Assemblies of the States who

constitute State wise electoral colleges for electing

representatives of each State in the Council of States under

the provisions of Article 80 (4). The counsel argue that the

freedom of expression without fear of legal consequences as

flowing from Article 194(2) should inure to the Members of the

Legislative Assemblies while discharging their function as

electoral college under Article 80(4).

This argument, though attractive, does not deserve any

credence in the context at hand. The proceedings concerning

election under Article 80 are not proceedings of the "House of

the Legislature of State" within the meaning of Article 194. It is

the elected members of the Legislative Assembly who

constitute, under Article 80 the Electoral College for electing

the representative of the State to fill the seat allocated to that

State in the Council of States. It is noteworthy that it is not

the entire Legislative Assembly that becomes the Electoral

College, but only the specified category of members thereof.

When such members assemble at a place, they do so not to

discharge functions assigned under the Constitution to the

Legislative Assembly. Their participation in the election is only

on account of their ex-officio capacity of voters for the election.

Thus, the act of casting votes by each of them, which also

need not occur with all of them present together or at the

same time, is merely exercise of franchise and not proceedings

of the legislature.

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 1st March 1985. The purpose of the said amendment as

declared in the Objects and Reasons was to combat the "evil of

political defections" which have been "a matter of national

concern" and which menace has the potency to "undermine

the very foundations of our democracy and the principles

which sustain it".

The said amendment also added sub-Articles (2) to

Article 102 and 191 that pertained to Disqualifications for

membership of the Houses of Parliament and Houses of State

Legislature respectively. Paragraph 1 (a) of the Tenth Schedule

also confirms its application to "House" which has been

defined to mean "either House of Parliament or the Legislative

Assembly or, as the case may be, either House of the

Legislature of a State". The new sub-Articles declared, in

identical terms, that a "person shall be disqualified for being a

member" of either of the said Houses "if he is so disqualified

under the Tenth Schedule". Paragraph 2 of the Tenth

Schedule, to the extent germane here, may be extracted as

under : -

"2. Disqualification on ground of

defection.\027(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 House\027

(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 obtaining, in either case, the

prior permission of such political party,

person or authority, and such voting or

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abstention has not been condoned by

such political party, person or authority

within fifteen days from the date of such

voting or abstention.

Explanation.\027For the purposes of

this sub-paragraph,\027

(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;

(b) a nominated member of a

House shall,\027

(i) where he is a member of any

political party on the date of his

nomination as such member, be deemed

to belong to such political party;

(ii) in any other case, be deemed to

belong to the political party of which he

becomes, or, as the case may be, first

becomes, a member before the expiry of

six months from the date on which he

takes his seat after complying with the

requirements of Article 99 or, as the case

may be, Article 188.

XXXXXXXXX "

It is the contention of the petitioners that the fact that

election to fill the seats in the Council of States by the

legislative assembly of the State involves 'voting', the principles

of Tenth Schedule are attracted. They argue that the

application of the Tenth Schedule itself shows that open ballot

system tends to frustrate the entire election process, as also

its sanctity, besides the provisions of the Constitution and the

RP Act. They submit that the open ballot system, coupled with

the looming threat of disqualification under the Tenth

Schedule 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 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 furthers the

Constitutional provisions in the Tenth Schedule.

It has to be borne in mind that the party system is well

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 & obligations.

In S.R. Bommai, this Court ruled as under: -

"104. What is further \027 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 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

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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 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 \027 as has

happened till date \027 that through

political bargaining, adjustment and

understanding, a State level party may

agree to elect candidates of a national

level party to Parliament and vice versa.

This mosaic of variegated pattern of

political life is potentially inherent in a

pluralist multi-party democracy like ours.

Hence the temptation of the political

party or parties in power (in a coalition

Government) to destabilise or sack the

Government in the State not run by the

same political party or parties is not rare

and in fact the experience of the working

of Article 356(1) since the inception of the

Constitution, shows that the State

Governments have been sacked and the

Legislative Assemblies dissolved on

irrelevant, objectionable and unsound

grounds. So far the power under the

provision has been used on more than 90

occasions and in almost all cases against

Governments run by political parties in

opposition. If the fabric of pluralism and

pluralist democracy and the unity and

integrity of the country are to be

preserved, judiciary in the circumstances

is the only institution which can act as

the saviour of the system and of the

nation."

(emphasis supplied)

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 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. "\005

on practically every issue in the modern

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 the leisure,

and seldom the information, to do more

than indicate the 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,

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Fifth Edn., pp. 313-314)."

(emphasis supplied)

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 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.

In Kihoto Hollohan v. Zachillhu (supra) , it was held

that: -

"43. Parliamentary democracy envisages

that matters involving implementation of

policies of the government should be

discussed by the elected representatives

of the people. Debate, discussion and

persuasion are, therefore, the means and

essence of the democratic process.

During the debates the Members put

forward different points of view. Members

belonging to the same political party may

also have, and may give expression to,

differences of opinion on a matter. Not

unoften the views expressed by the

Members in the House have resulted in

substantial modification, and even the

withdrawal, of the proposals under

consideration. Debate and expression of

different points of view, thus, serve an

essential and healthy purpose in the

functioning of Parliamentary democracy.

At times such an expression of views

during the debate in the House may lead

to voting or abstinence from voting in the

House otherwise than on party lines.

44. But a political party functions on the

strength of shared beliefs. Its own

political stability and social utility

depends on such shared beliefs and

concerted action of its Members in

furtherance 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 undermine public

confidence in it which, in the ultimate

analysis, is its source of sustenance \027

nay, indeed, its very survival. Intra-party

debates are of course a different thing.

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 (1989 edn., p. 119) say:

"Loyalty to party is the norm,

being based on shared beliefs.

A divided party is looked on

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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 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 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)

Clause (b) of sub-para (1) of Paragraph 2

of the Tenth Schedule gives effect to this

principle and sentiment by imposing a

disqualification on a Member who votes

or abstains from voting contrary to "any

directions" issued by the political party.

The provision, however, recognises two

exceptions: one when the Member

obtains from the political party prior

permission to vote or abstain from voting

and the other when the Member has

voted without obtaining such permission

but his action has been condoned by the

political party. This provision itself

accommodates the possibility that there

may be occasions when a Member may

vote or abstain from voting contrary to

the direction of the party to which he

belongs. This, in itself again, may provide

a clue to the proper understanding and

construction of the expression "any

direction" in clause (b) of Paragraph 2(1)

\027 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 disqualification the

expression should be given a meaning

confining 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 122, this Court proceeded to hold as

under:-

122. While construing Paragraph 2(1)(b)

it cannot be ignored that under the

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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) and Article

194(1)]. The disqualification imposed by

Paragraph 2(1)(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(1)(b) is

confined in its scope by keeping in view

the object underlying the amendments

contained in the Tenth Schedule, namely,

to curb the evil or mischief of political

defections motivated by the lure of office

or other similar considerations. The said

object would be achieved if the

disqualification incurred on the ground of

voting or abstaining from voting by a

member is confined to cases where a

change of government is likely to be

brought about or is prevented, as the

case may be, as a result of such voting or

abstinence or when such voting or

abstinence is on a matter which was a

major policy and programme on which

the political party to which the Member

belongs went to the polls. For this

purpose the direction given by the

political party to a Member belonging to

it, the violation of which may entail

disqualification under Paragraph 2(1)(b),

would have to be limited to a vote on

motion of confidence or no confidence in

the government or where the motion

under consideration relates to a matter

which was an integral policy and

programme of the political party on the

basis of which it approached the

electorate. The voting or abstinence from

voting by a Member against the direction

by the political party on such a motion

would amount to disapproval of the

programme on the basis of which he went

before the electorate and got himself

elected and such voting or abstinence

would amount to a breach of the trust

reposed in him by the electorate."

(emphasis supplied)

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 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,

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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 Hollohan v. Zachillhu (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.

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 turn ensures a democratic government showing the

true will of the people. The significance of this emphasis lies

in the recognition that it is a democratic 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 Human Rights and International Convention on

Civil and Political Rights (ICCPR).

Universal Declaration of Human Rights, through Article

21 provides as under: -

"(1) Everyone has the right to take part in

the government of his country, directly or

through freely chosen representatives.

(2) Everyone has the right of equal access

to public service in his country.

(3) The will of the people shall be the

basis of the authority of government; this

will shall be expressed in periodic and

genuine 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: -

"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;

(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

terms of equality, to public

service in his country."

Both the documents, thus, provide for formation 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

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

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Secret Ballot System, as free expression of the will of voter

have been accepted.

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: -

"\005\005Others held that 'genuine periodic

elections', 'universal and equal suffrage'

and 'secret ballot' were the elements of

genuine elections, which in turn

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 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 Kerala & 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) 1 SCC 301];

Nilabati Behera v. State of Orissa & Ors. [1993 (2) SCC

746]; Kapila Hingorani v. State of Bihar [2003 (6) SCC 1]

and State of W.B. v. Kesoram Industries Ltd. & Ors.

[(2004) 10 SCC 201].

According to Mr. Sachar, the emphasis in the

aforementioned judgments is that evolving jurisprudence of

human rights is required to be used in 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 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.

It was said as early as in Kesavananda Bharati v.

State of Kerala (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."

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.

Secrecy of Vote \026 requisite for free and fair election

The learned 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 submit that

this is the spirit of our constitutional law and also universally

accepted norm and that any departure in this respect

impinges on the fundamental rights, in particular freedom of

expression by the voter.

Reference has been made to the case of S. Raghbir

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Singh Gill v. S. Gurcharan Singh Tohra, [1980 Supp SCC

53], in which appeal the core problem concerned the issue as

to whether "Purity of election and secrecy of ballot, two central

pillars supporting the edifice of parliamentary democracy

envisioned in the Constitution" stand in confrontation with

each other or are complementary to each other.

The case of S. Raghbir Singh Gill v. S. Gurcharan

Singh Tohra (supra) pertained to the period anterior to the

impugned amendment. As noticed earlier, Section 94 of the RP

Act, 1951, as it then stood, made provision for ensuring that

"Secrecy of voting" is not infringed in any election. In order to

do this, the provision would make every witness or other

person immune from being "required to state for whom he has

voted at an election."

This Court found in the aforementioned case that Section

94 could not be interpreted or examined in isolation and that

its scope, ambit and underlying object must be ascertained in

the context of the Act in which it finds its place viz. the RP Act,

1951 and further in the context of the fact that this Act itself

was enacted in exercise of power conferred by the Articles in

Part XV titled "Elections" in the Constitution. It was the view

of this Court that "Any interpretation of Section 94 must

essentially subserve the purpose for which it is enacted. The

interpretative process must advance the basic postulate of free

and 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".

This Court ruled thus: -

"13. Secrecy of ballot undoubtedly is an

indispensable adjunct of free and fair

elections. A voter had to be statutorily

assured that he would not be compelled to

disclose by any authority as to for whom

he voted so that a voter may vote without

fear or favour and is free from any

apprehension of its disclosure against his

will from his own lips. \005.. 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 a certificate of indemnity in the

circumstances therein set out. A

conspectus of the relevant provisions of

the Evidence Act and Sections 93, 94 and

95 of the Act would affirmatively show that

they provide for a procedure, including the

procedure for examination of witnesses,

their rights and obligations in the trial of

an election petition. The expression

"witness" used in the section is a pointer

and further expression "other person"

extends the protection to a forum outside

courts. \005".

(emphasis supplied)

After taking note of, amongst other provisions, Section 94

and 128 of the RP Act, 1951 and the Rules 23(3), 23(5)(a) &

(b), 31(2), 38(4), 39(1), (5), (6) & (8), second proviso to 40(1),

38-A (4), 39-A (1) & (2) as contained in the Conduct of Election

Rules, 1961 ("Rules" for short) and similar other rules, this

Court found that while seeking to provide for maintaining

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secrecy of ballot, they were meant "to relieve a person from a

situation where he may be obliged to divulge for whom he has

voted under testimonial compulsion". It was then observed in

Paragraph 14 that: -

"\005. Secrecy of ballot can be

appropriately styled as a postulate of

constitutional democracy. It enshrines a

vital principle of parliamentary

institutions set up under the

Constitution. It subserves a very vital

public interest in that an elector or a

voter should be absolutely free in

exercise of his franchise untrammelled

by any constraint which includes

constraint as to the disclosure. A remote

or distinct possibility that at some point

a voter may under a compulsion of law

be forced to disclose for whom he has

voted would act as a positive constraint

and check on his freedom to exercise his

franchise in the manner he freely

chooses to exercise. Therefore, it can be

said with confidence that this postulate

of constitutional democracy rests on

public policy."

(emphasis supplied)

It was thus held that secrecy of ballot, a basic postulate

of constitutional democracy, was "formulated not in any

abstract situation or to be put on a pedestal and worshipped

but for achieving another vital principle sustaining

constitutional democracy viz. free and fair election".

This Court found that Section 94 was meant as a

privilege of the voter to protect him against being compelled to

divulge information as to for which candidate he had voted.

Nothing prevents the voter if he chooses to open his lips of his

own free will without direct or indirect compulsion and waive

the privilege. It was noticed that the provision refers to a

"witness or other person". Thus, it is meant to protect the

voter both in the court when a person is styled as a witness

and outside the court when he may be questioned about how

he voted. It was found that no provision existed as could

expose the voter to any penalty if he voluntarily chooses to

disclose how he voted or for whom he voted.

With a very clear view that 'Secrecy of ballot' as provided

in Section 94 was mooted "to ensure free and fair elections",

the Court opined thus: -

"\005If secrecy of ballot instead of ensuring

free and fair elections is used, as is done

in this case, to defeat the very public

purpose for which it is enacted, to

suppress a wrong coming to light and to

protect a fraud on the election process or

even to defend a crime viz. forgery of

ballot papers, this principle of secrecy of

ballot will have to yield to the larger

principle of free and fair elections\005.."

(emphasis supplied)

The Court, after noticing that the RP Act, 1951 is a self-

contained Code on the subject of elections and reiterating that

"there is one fundamental principle which permeates through

all democratically elected parliamentary institutions viz. to set

them up by free and fair election", observed:

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"\005The principle of secrecy of ballot

cannot stand aloof or in isolation and 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

purity of election in larger public interest.

In fact secrecy of ballot, a privilege of the

voter, is not inviolable and may be waived

by him as a responsible citizen of this

country to ensure free and fair election

and to unravel foul play."

(emphasis supplied)

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 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 of fraud, forgery, and

other illegal acts affecting the purity and

legality of elections".

(emphasis supplied)

Rejecting the apprehension that the principle of secrecy

enshrined in Section 94 of the RP Act, 1951, cannot be waived

because it was enacted in public interest and it being a

prohibition based on public policy, and while agreeing with the

contention that where a prohibition enacted is founded on

public policy courts should be slow to apply the doctrine of

waiver, it was held that the privilege of secrecy was granted for

the benefit of an individual, even if conferred to advance a

principle enacted in public interest, it could be waived because

the very concept of privilege inheres a right to waive it. The

Court thus found it an "inescapable conclusion" that the

principle of secrecy in Section 94 enacts a qualified privilege in

favour of a voter not to be compelled to disclose but if he

chooses to volunteer the information the rule is not violated.

Thus, even under the elections that continue to be based

on principle of secrecy of voting, it is for the voter to choose

whether he wishes to disclose for whom he had voted or would

like to keep the secrecy intact. If he so chooses, he can give up

his privilege and in that event, the secrecy of ballot should

yield. Such an event can also happen if there is fraud, forgery

or other illegal act and the disclosure sub-serves the purpose

of administration of justice.

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 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

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ballot forms a basis of free and fair election, which is

necessary for survival of democracy.

Mr. Sachar also pressed in aid the decision in Charles

W. Burson v. Mary 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 is of the essence of a

democratic society."

"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, after dealing with the evil

associated with 'viva voce system' and the failure of law to

secure secrecy which had opened the door to bribery it was

summed up as follows:

"In sum, an examination of the history of

election regulation in this country reveals

a persistent battle against two evils; voter

intimidation and election fraud. After an

unsuccessful experiment with an

unofficial ballot system, all 50 States,

together with numerous other Western

democracies, settled on the same

solution: a secret ballot secured in part

by a restricted zone around the voting

compartments."

"Finally, the dissent argues that we

confuse history with necessity. Yet the

dissent concedes that a secret ballot was

necessary to cure electoral abuses.

Contrary to the dissent's contention, the

link between ballot secrecy and some

restricted zone surrounding the voting

area is not merely timing \026 it is common

sense. The only way to preserve the

secrecy of the ballot is to limit access to

the area around the voter. Accordingly,

we hold that some restricted zone around

the voting area is necessary to secure the

State's compelling interest."

Mr. PP Rao, learned senior advocate, in submitting that

voting being a form of expression and a secret ballot ensures

freedom of vote, relied upon observations in Paragraph 2 of the

judgment in Lily Thomas v. Speaker, Lok Sabha & Ors.

[(1993) 4 SCC 234], wherein the Court was taking note of the

process under Article 124 (4) for removal of a Judge of the

Supreme Court. It may be mentioned here that the

proceedings in the nature envisaged under Article 124 (4) were

held earlier in Sub-Committee on Judicial Accountability v.

Union of India [(1991) 4 SCC 699], not to be proceedings in

the Houses of Parliament and rather one that would partake of

judicial character because 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 duty under

the Judges Enquiry Act and comes to an

end once the Committee appointed by the

Speaker submits the report. The debate

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on the Motion thereafter in the

Parliament, the discussion and the voting

appear more to be political in nature.

Voting is formal expression of will or

opinion by the person entitled to exercise

the right on the subject or issue in

question. In Black's Law Dictionary it is

explained as, "the expression of one's will,

preference, 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 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. \005\005"

(emphasis supplied)

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 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.

In above context, he would cite the following passage

from S.R. 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. In constitutional terms, it denotes

that the sovereign power which resides in

the people is exercised on their behalf by

their chosen representatives and for

exercise of those powers, the

representatives are necessarily

accountable to the people for what they

do. The members of the Legislature, thus,

must owe their power directly or

indirectly to the people. The members of

the State Assemblies like the Lok Sabha

trace their power directly as elected by

the people while the members of the

Council of State like the Rajya Sabha owe

it to the people indirectly since they are

chosen by the representatives of the

people. The Council of Ministers of which

the Chief Minister is the head in the State

and on whose aid and advice the

Governor has to act, must, therefore, owe

their power to the people, directly or

indirectly."

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It is the submission of Mr. Sachar that the reason used

to justify the amendment is fallacious since it assumes as if

secrecy of voting is only a routine matter of procedure and that

it would also mean that Parliament could in future provide

that election to the House of the People would be by open

ballot because there is no such provision for secrecy

mentioned in the Constitution. His submission is that secrecy

of ballot is an integral part of a democratic set up and its

absence means absence of free and fair election.

In 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 being "purity of

elections" and the other "secrecy of ballot". On the basis of the

former, the Kerala High Court had upset the election of the

appellant who later came before this Court. Challenge to the

order of the 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 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 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 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: -

"The existence of the principle of "secrecy

of ballot" cannot be denied. It

undoubtedly is an indispensable adjunct

of free and fair elections. The Act

statutorily 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 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 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

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fundamental foundation of purity and the

"secrecy of ballot" as an allied vital

principle\005\005\005".

(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 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 correct. 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 of the President and the Vice President respectively,

provide for election by "secret ballot".

Articles 55(3) and 66(1) 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

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 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 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 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 infirmity in providing open ballot

system for the Council of States.

Other arguments & Conclusion

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 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

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law under 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 effect

that "when Parliament or any 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 constitutional right, a

facet of Article 19(1)(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.

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

complimentary to the respect and dignity of the legislators,

besides being factually unacceptable.

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 in the 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 democracy, namely,

not "to lay their liberties at the feet of

even a great man, or to trust him with

powers which enable him to subvert their

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

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 world.

Bhakti in religion may be a road to the

salvation of the soul. But, in politics,

Bhakti or hero-worship is a sure road to

degradation 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 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 election

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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 courage.

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 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 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 the official candidates belonging to

their own political party". The Committee commended "holding

the elections to Rajya Sabha and the Legislative Councils in

States 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 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 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 impugned

amendment of Sections 59, 94 and 128 of RP Act, 1951, the

said Rules have also been amended by the Central

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 \026 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: -

" 39-A. Maintenance of secrecy of

voting by electors within polling

station and voting procedure. \026 (1)

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

laid down.

(2) The elector on receiving the ballot

paper shall forthwith \026

(a) proceed to one of the voting

compartments;

(b) record his vote in accordance

with sub-rule (2) of rule 37-A,

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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;

(e) insert the folded paper into the

ballot box, and

(f) quit the polling station.

(3) every elector shall vote without

undue delay.

(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 he has recorded his vote thereon

or not, be taken back from him by the

Presiding Officer or a polling officer under

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.

(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 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: -

"Information regarding casting of

votes. - (1) Notwithstanding anything

contained in Rule 39-A, the presiding

officer shall, between the period when an

elector being a member of a political party

records his vote on a ballot paper and

before such elector inserts that ballot

paper into the ballot box, allow the

authorized agent of that political party to

verify as to whom such elector has cast

his vote:

Provided that if such elector refuses

to show his marked ballot paper to the

authorized agent of his political party, the

ballot paper issued to him shall be taken

back by the presiding officer or a polling

officer under the direction of the

presiding officer and the ballot paper so

taken back shall then be further dealt

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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

(1), appoint, in Form 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 when he

goes out of the polling station or vice

versa."

Since Rule 39-AA is required to be read with Rule 39-A,

the former is necessarily an exception to the general rule in all

other elections conducted under the RP Act, 1951 by the

Election Commission. The norm has been, prior to the

impugned amendment, that the voting shall be by a secret

ballot, in which all concerned, including the electors are

expected to preserve the sanctity of the vote by keeping it

secret. But as already observed, the privilege to keep the vote

secret is that of the elector who may choose otherwise; that is

to say, he may opt to disclose the manner in which he has cast

his vote but he cannot be compelled to disclose the manner in

which he has done so, except in accordance with the law on

the subject which ordinarily comes into play only in case the

election is challenged by way of election petition before the

High Court. In the case of election to the Council of States, in

the post amendment scenario, the norm has undergone a

change, in that the political party to which a particular

member of the Legislative Assembly of the State belongs is

entitled to ascertain through formally appointed authorized

agent deputed at the polling station the manner in which the

member in question, who is an elector for such purposes, has

exercised his franchise. The exception applies only to such

members of the Legislative Assembly, as are members of a

political party and not to all members across the board. The

voter at such an election may refuse to show his vote to the

authorized agent of his political party, but in such an event he

forfeits his right to vote, which is cancelled by the Presiding

Officer of the poling station on account of violation of the

election procedure.

The effect of the amended 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 whom such an elector

casts his vote. In case such an elector refuses to show his

marked ballot paper, the same shall be taken back and will be

cancelled by the Presiding Officer on the ground that the

voting procedure had been violated. There is, therefore, a

compulsion on the voter to show his vote.

But then, the above rules are only in furtherance of the

object sought to be achieved by the impugned amendment.

Rather, the rules show, the open ballot system put in position

does not mean open to one and all. It is only the authorized

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.

Voting at elections to the Council of States cannot be

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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 Council of States as the electors are elected

members of the legislative assemblies who in turn have party

affiliations.

The electoral systems world over contemplate variations.

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

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:

"Section 24 of the Australian Constitution

embodies three principles, i.e.,

representative democracy, direct popular

election and character of the House of

representative democracy predicates

enfranchisement of the electors, the

existence of an electoral system capable

of giving effect to the selection of their

representatives and bestowal of legislative

functions upon representatives selected.

The extent of franchise comes under the

heading "enfranchisement of electors".

The electoral system with innumerable

details including voting methods and

qualifications of representatives as well

as proportional representation in different

forms etc. are maters in which there

cannot exist a set formula said to be

consistent with the representative

democracy. The wide range of legislative

functions which a legislature may

possess must be given due weightage in

such matters. Representative democracy

covers an entire spectrum of political

institutions, each differing in countless

respects. However, at no point of time

within such spectrum does there exist a

single requirement so essential so as to

be determinative of the existence of

Representative Democracy. Section 24 of

the Australian Constitution provides for

direct choice of members by the people.

The existence of variations in the

number of persons or voters in the

electoral division within a State does not

detract from the description of the House

of 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

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there is an element of proportionality.

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

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 of such members shall be, as

nearly as practicable, twice the number of

the senators.

The number of members chosen in

the several States shall be in proportion

to the respective numbers of their people,

and shall, until the Parliament otherwise

provides, be determined, whenever

necessary, in the following manner:-

(i) A quota shall be ascertained by

dividing the number of the people of the

Commonwealth, as shown by the latest

statistics of the Commonwealth, by twice

the number of the senators;

(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.

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 of electors of the more

numerous House of Parliament of the

State; 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 absolute

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majority of each House of the Parliament,

and n 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 majority,

and the other House rejects or fails to

pass it or passes it with any amendments

to which the first-mentioned House will

not agree, and if after an interval of three

months the first-mentioned House in the

same or the next session again passes

the proposed law by an absolute majority

with or without any amendment which

has been made or agreed to by the other

House, and such other House rejects or

fails to pass it or passes it with any

amendment to which the first-mentioned

House will not agree, the Governor

General may submit the proposed law as

last proposed by the first-mentioned

House, and either with or without any

amendments subsequently agreed to by

both Houses, to the electors in each State

and Territory qualified to vote for the

election of the House of Representatives.

When a proposed law is submitted

to the electors the vote shall be taken in

such manner as the Parliament

prescribes. But until the qualification of

electors of members of the House of

Representatives 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 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

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 one

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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 Article 80(4) and Section 30

to Article 84 of our Constitution.

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 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 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 of the Australian Constitution

in contra-distinction to the word "elector"

in Sections 8, 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)

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 of South Africa v. Government of the

Republic of South Africa & Anr. reported in 1999 (3) SA

191, head note whereof reads as under:

"Held (per Yacoob J; Chaskalson P. Langa

DP, Ackermann J, Goldstone J, Madala J.

Mokgoro J and Sachs J Concurring) that

the right to vote was indispensable to,

and empty without, the right to free and

fair elections; the latter gave content and

meaning to the former. The right to free

and fair elections underlined the

importance of the exercise of the right to

vote and the requirement that every

election should be fair had implications

for the way in which the right to vote

could be given more substantive content

and legitimately exercised. Two of these

implications were material for the present

case: each citizen entitled to do so must

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note vote more than once in any election

and any person not entitled to vote must

not be permitted to do so. The extent to

which these deviations occurred would

have an impact on the fairness of the

election. This meant that the regulation

of the exercise of the right to vote was

necessary so that these deviations could

be eliminated or restricted in order 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 J dissenting), that

the right to vote contemplated by section

19(3) of the Constitution was therefore a

right to vote in free and fair elections in

terms of an electoral system prescribed

by national legislation which complied

with the requirements laid down by the

Constitution. The details of the system

were left to Parliament. The national

legislation which prescribed the electoral

system was the Electoral Act. (Paragraph

(14) at 202C/D-D/E)"

(emphasis supplied)

It shows that the right to vote in 'free and fair elections' is

always in terms of an electoral system prescribed by national

legislation. The right to vote derives its colour from the right

to 'free and fair elections'; that the right to vote is empty

without the right to 'free and fair elections'. It is the concept of

'free and fair elections' in terms of an electoral system which

provides content and meaning to the 'right to vote'. In other

words, 'right to vote' is not an ingredient of the free and fair

elections. It is essential but not the necessary ingredient.

In the aforesaid case, the dispute was whether the

Electoral Act could prescribe only one specific means as proof

of enrolment on the voters roll for voting. Under Electoral Act,

I.D. card was prescribed as the only proof of enrolment on the

voters roll. This was challenged. Rejecting the objection, the

Constitutional Court through Yacoob, J, on behalf of the

majority held:

[10] 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 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.

[11] The Constitution effectively confers

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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

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 for a

democracy; it is both empty and useless.

[12] The Constitution takes an important

step in the recognition of the importance

of the right to exercise the vote by

providing that all South African citizens

have the right to free, fair and regular

elections. It is to be noted that all South

African citizens irrespective of their age

have a right to these elections. The right

to vote is of course indispensable to, and

empty without, the right to free and fair

elections; the latter gives content and

meaning to the former. The right to free

and fair elections underlines the

importance of the exercise of the right to

vote and the requirement that every

election should be fair has implications

for the way in which the right to vote can

be given more substantive content and

legitimately exercised. Two of these

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.

This means that the regulation of the

exercise of the right to vote is necessary

so that these deviations can be

eliminated or restricted in order to ensure

the proper implementation of the right to

vote.

[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

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

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prescribed by national legislation.

(b) The electoral system must, in

general, result in proportional

representation.

(c) Elections for the national assembly

must be based on the national common

voters roll.

(d) Elections for provincial legislatures

and municipal councils must be based on

the province's segment and the

municipality's segment of the national

common voters roll respectively.

The existence of, and the proper

functioning of a voters roll, is therefore a

constitutional requirement integral both

to the elections mandated by the

Constitution and to the right to vote in

any of them.

[15] The requirement that only

those persons whose names appear on

the national voters roll may vote, renders

the requirement that South African

citizens must register before they can

exercise their vote, a constitutional

imperative. It is a constitutional

requirement of the right to vote, and not

a limitation of the right.

[16] The process of registration and

voting needs to be managed and

regulated in order to ensure that the

elections are free and fair. The creation

of a Commission to manage the elections

is a further essential though, not

sufficient ingredient in this process. In

order to understand the enormity of the

problem, one has just to picture the

specter of millions of South Africans

arriving at registration points or voting

stations armed with all manner of

evidence and that they are entitled to

register or to vote, only to have the

registration or electoral officer sift

through this evidence in order to

determine whether or not 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 identify themselves in

order to register on the common voters

roll and to vote.

[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

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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 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.

The nature of the enquiry

[18] The appellant did not dispute

that proof of identity and citizenship for

registration, and proof of enrolment on

the voters roll for voting, are necessary

components of the electoral system

contemplated by the Constitution. What

was disputed was whether the Electoral

Act could prescribe that the only means

for such proof was a bar-coded ID or TRC

for registering and a bar-coded ID or TIC

for voting. The submissions on behalf of

the appellant were advanced at two

levels. In the first place, it was contended

that the relevant provisions on their face

and evaluated in relation to the

constitutional right to vote infringe this

right. The question of the facial

inconsistency of the impugned provisions

with the right to vote and the right to free

and fair elections as encapsulated in the

Constitution must be addressed both in

relation to the rationality of the provision

and to whether it infringes the right.

Although it was specifically mentioned in

response to questions by a member of the

Court that the appellant relied on facial

inconsistency, no substantial argument

was advanced in support of such a

contention. Secondly, the argument was

that the consequences of the

documentary requirements constituted a

denial of the right to vote to millions of

South African citizens who were not in

possession of the bar-coded ID. Many of

these persons (millions of people), so it

was argued, would not be able to vote for

a variety of inter-related reasons. The

submissions were that the Department of

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 them to apply for

the documents in time. It was contended

in this context that South African citizens

who were in possession of identity

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documents issued pursuant to legislation

which was operative before the 1986 Act

came into force ought to have been

allowed to use them.

[19] It is to be emphasized that it is

for Parliament to determine the means by

which voters must identify themselves.

This is not the function of a court. But

this does not mean that Parliament is at

large in determining the way in which the

electoral scheme is to be structured.

There are important safeguards aimed at

ensuring appropriate protection for

citizens who desire to exercise this

foundational right. The first of the

constitutional constraints placed upon

Parliament is that there must be a

rational relationship between the scheme

which it adopts and the achievement of a

legitimate governmental purpose.

Parliament cannot act capriciously or

arbitrarily. The absence of such a

rational connection will result in the

measure being unconstitutional. An

objector who challenges the electoral

scheme on these grounds bears the onus

of establishing the absence of a legitimate

government purpose, or the absence of a

rational relationship between the

measure and that purpose.

[20] A second constraint is that the

electoral scheme must not infringe any of

the fundamental rights enshrined in

chapter 2 of the Constitution. The onus

is once again on the party who alleges an

infringement of the right to establish it.

The contention in this appeal is that the

impugned provisions of the Electoral Act

constitute a denial of the right to vote to a

substantial number of South African

citizens. Any scheme designed to

facilitate the exercise of this right carries

with 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

right? 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 process 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 implementation which

occurs at some time in the future. It is

necessary, at the outset of the enquiry, to

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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 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 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 Court has adopted an

objective approach to the issue of the

constitutionality of statutory provisions.

A pre-existing law becomes invalid to the

extent of its inconsistency with the

Constitution, the moment the

Constitution comes into force. It is

irrelevant that this Court may declare it

to be inconsistent only several years

later. Similarly, a statutory provision

which is passed after the constitution

comes into operation is invalid to the

extent of its inconsistency with the

Constitution, the moment the provision is

enacted. This is so regardless of the fact

that its invalidity is only attacked, or the

concrete circumstances that form the

basis of the attack only become apparent,

long after its enactment. Consistent with

this objective approach to statutory

invalidity, the circumstances which

become apparent at the time when the

validity of the provision is considered by a

court are not necessarily irrelevant to the

question of its consequential invalidity.

However, a statute cannot have limping

validity, valid one day, invalid the next,

depending upon changing circumstances.

Its validity must ordinarily be determined

as at the date it was passed.

Nevertheless, the implementation of an

Act which passes constitutional scrutiny

at the time of its enactment, may well

give rise to a constitutional complaint, if,

as a result of circumstances which

become apparent later, its

implementation would infringe a

constitutional right. In assessing the

validity of such a complaint, it becomes

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necessary to determine whether the

proximate cause of the infringement of

the right is the statutory provision itself,

or whether the infringement of the right

has been precipitated by some other

cause, such as the failure of a

governmental agency to fulfill its

responsibilities. If it is established that

the proximate cause of the infringement,

in the light of the circumstances, lies in

the statutory provision under

consideration, that provision infringes the

right. This is not a departure from the

objective approach to unconstitutionality.

It is merely a recognition of the fact that a

constitutional defect in a statutory

provision is not always readily apparent

at the time of its enactment, but may

only emerge later when a concrete case

presents itself for adjudication.

[23] It is necessary to apply an

objective test in deciding whether the Act

of Parliament, which makes provision for

the electoral scheme challenged in the

present case, is valid. Parliament is

obliged to provide for the machinery,

mechanism or process that is reasonably

capable of achieving the goal of ensuring

that all persons who want to vote, and

who take reasonable steps in pursuit of

that right, are able to do so. I conclude,

therefore, that the Act would infringe the

right to vote if it is shown that, as at the

date of the adoption of the measure, its

probable consequence would be that

those who want to vote would not have

been able to do so, even though they

acted reasonably in pursuit of the right.

Any scheme which is not sufficiently

flexible to be reasonably capable of

achieving the goal of ensuring that people

who want to vote will be able to do so if

they act reasonably in pursuit of the

right, has the potential of infringing the

right. That potential becomes apparent

only when a concrete case is brought

before a court. The appellant bears the

onus of establishing that the machinery

or process provided for is not reasonably

capable of 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 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 Another v. The

Electoral Commission and Others that all

prisoners would have been effectively

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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, 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 effect, and asks the

question whether the electoral scheme is

reasonable. She goes on to conclude that

the scheme is not reasonable, and for

that reason, to hold that the relevant

provisions of the Electoral Act are

inconsistent with the Constitution. In my

view this is not the correct approach to

the problem. Decisions as to the

reasonableness of statutory provisions

are ordinarily matters within the

exclusive competence of Parliament. This

is fundamental to the doctrine of

separation of powers and to the role of

courts in a democratic society. Courts do

not review provisions of Acts of

Parliament on the grounds that they are

unreasonable. They will do so only if

they are satisfied that the legislation is

not rationally connected to a legitimate

government purpose. In such

circumstances, review is competent

because the legislation is arbitrary.

Arbitrariness is inconsistent with the rule

of law 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 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 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

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[25] It is, in my view, convenient to

determine whether the impugned

provisions are rationally related to a

legitimate governmental purpose in two

stages. The first part of the enquiry is

whether a facial analysis of the provisions

in issue, in relation to the Constitution,

has been shown to lack rationality; the

second is whether these provisions can

be said to be arbitrary or capricious in

the light of certain circumstances existing

as at the date of the adoption of the

statute.

Effect of the relevant circumstances

[28] The facial analysis

demonstrates that the statutory

provisions asserting the disputed

documentary requirements are rationally

related to the legitimate governmental

purpose of ensuring the effective exercise

of the right to vote. I will now examine

whether the disputed measures can be

said to be arbitrary or capricious in the

light of the circumstances which,

according to the appellant, were

relevant."

It is, therefore, evident that the right to vote is a concept

which has to yield to a concept of the attainment of free and

fair 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 indirect and where members are chosen by

indirect means, such as, by parliament or by legislative

assembly or by executive, then open ballot can be introduced

as a concept under the electoral system of voting. In the case

of direct elections, members are chosen directly by popular

vote which is not the case under indirect elections. Therefore,

it cannot be said that the concept of open ballot would defeat

the attainment of free and fair elections. In the present case,

the question of denial of right to vote would be self inflicted

only on the member of the Legislative Assembly declining to

show his vote to the authorized representative of the party. If

a MLA casts a vote in favour of any person he thinks

appropriate and shows his vote to the authorized

representative of the political party to which he belongs, Rules

do not contemplate cancellation of such a vote.

It cannot be forgotten that the existence of political

parties is an essential feature of our Parliamentary democracy

and that it can be a matter of concern for Parliament if it finds

that electors were resorting to cross voting under the garb of

conscience voting, flouting party discipline in the name of

secrecy of voting. This would weaken the party discipline over

the errant Legislators. Political parties are the sine qua non of

Parliamentary democracy in our country and the protection of

party discipline can be introduced as an essential 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 predominantly elected as Members of the State

Legislatures. The context in which General Elections are held,

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secrecy 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.

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

Others reported in 2003 (1) SA 495, where the question

before the Supreme Court was: whether 'floor crossing' was

fundamental to the Constitution of South Africa. In this

judgment the concept of proportional representation vis-`-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 multi-party system of democratic

government" in the context of section 1(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 authority on

political science or the South African

Constitution that offers a meaning of

these words. Nor can any assistance be

gleaned from commentaries 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 it

is permissible for different political

groups to organize, promote their views

through public debate and participate in

free and fair elections. These activities

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 of the disputed

legislation.

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 Constitution.

Proportional Representation

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28. In support of this contention

reliance was placed by the applicants on

constitutional principle VIII which was

one of the principles with 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."

29. Significantly, however, section 1(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

omitted from section 1(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.

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 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 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 essential element of

democracy. Indeed, such an argument

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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

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', '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 the

electorate votes for, and parties which

must be accountable to the electorate. A

party which abandons its manifesto in a

way not accepted by the electorate would

probably lose at the next election. In

such a system an anti-defection clause is

not inappropriate to ensure that the will

of the electorate is honoured. An

individual member remains free to follow

the dictates of personal conscience. This

is not inconsistent with democracy.

\005. An ante-defection clause enables a

political party to prevent defections of its

elected members, thus ensuring that they

continue to support the party under

whose aegis they were elected. It also

prevents parties in power from enticing

members of small parties to defect from

the party upon whose list they were

elected to join the governing party. If this

were permitted it could enable the

governing party to obtain a special

majority which it might not otherwise be

able to muster and which is not a

reflection of the views of the electorate.

This objection cannot be sustained."

34. It does not follow from this,

however, that a proportional

representation system without an ante-

defection clause is inconsistent with

democracy. It may be that there is a

closer link between voter and party in

proportional representation electoral

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systems than may be the case in

constituency-based electoral systems,

and that for this reason the argument

against defection may be stronger than

would be the case in constituency-based

elections. But even in constituency-

based elections, there is a close link

between party membership and election

to a legislature and a member who

defects to another party during the life of

a legislature is equally open to the

accusation that he or she has betrayed

the voters.

47. The fact that a particular system

operates to the disadvantage of particular

parties does not mean that it is

unconstitutional. For instance, the

introduction of a constituency-based

system of elections may operate to the

prejudice of smaller parties, yet it could

hardly be suggested that such a system is

inconsistent with democracy. If defection

is permissible, the details of the

legislation must be left to Parliament,

subject always to the provisions not being

inconsistent with the Constitution. The

mere fact that Parliament decides that a

threshold of 10% is necessary for

defections from a party, is not in our view

inconsistent with the Constitution.

Rule of law

55. Our Constitution requires legislation

to be rationally related to a legitimate

government purpose. If not, it is

inconsistent with the rule of law and

invalid.

68. In the pharmaceuticals

Manufacturers case it was pointed out

that rationality as a minimum

requirement for the exercise of public

power,

"does not mean that the courts can or

should substitute their opinions as to

what is appropriate, for the opinions of

those in whom the power has been

vested. As long as the purpose sought to

be achieved by the exercise of public

power is within the authority of the

functionary, and as long as the

functionary's decision, viewed objectively,

is rational, a court cannot interfere with

the decision simply because it disagrees

with it or considers that the power was

exercised inappropriately."

This 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.

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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 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 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 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."

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 for breach of discipline. 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 fair 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 (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. 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 Rule 7, 8,

364, 365, 367, 367A, 367AA and 367B of Rules of Procedure

and the Conduct of Business in the Lok Sabha and Rule 7,

252, 253 and 254 of Rules of Procedure and Conduct of

Business in the Council of States.

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

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Assembly of the particular State on the basis of party

nomination cannot be lightly brushed aside.

The submission on behalf of the Petitioners fails to take

into account the distinction between direct elections and

indirect elections. This is not a case of direct election by an

individual voter in any particular election. This is a case of

indirect election by members of the Legislative Assembly who

owe their membership to the Legislative Assembly having been

elected by reason of their being sponsored and promoted by

the political parties concerned.

The contention that the right of expression of the voter at

an election for the Council of States is affected by open ballot

is not tenable, as an elected MLA would not face any

disqualification from the Membership of the House for voting

in a particular manner. He may at the most attract action from

the political party to which he belongs. Being a Member of the

political party on whose ticket he was elected as an MLA, in

the first place, he is generally expected to follow the directions

of the party, which is one of the basic political units in our

democracy.

Since the amendment has been brought in on the basis

of need to avoid cross voting and wipe out evils of corruption

as also to maintain the integrity of our democratic set-up, it

can also be justified by the State as a reasonable restriction

under Article 19(2) of the Constitution, on the assumption that

voting in such an election amounts to freedom of expression

under Article 19(1)(a) of the Constitution.

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 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 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 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.

The procedure by which an election has to be held should

further the object of a free and fair election. It has been noted

by the Parliament that in elections to the Council of States,

members elected on behalf of the political parties misuse the

secret ballot and cross vote. It was reported that some

members indulge in cross voting for consideration. It is the

duty of the Parliament to take cognizance of such

misbehaviour and misconduct and legislate remedial

measures for the same. Breach of Discipline of political parties

for collateral and corrupt considerations removes the faith of

the people in a multi party democracy. The Parliament,

therefore, necessarily legislated to provide for an open ballot. A

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multi party democracy is a necessary part of the basic

structure of the Constitution. An amendment to law intended

to restore popular faith in parliamentary democracy and in the

multi party system cannot be faulted.

The principle of secrecy is not an absolute principle. The

legislative Amendment cannot be struck down on the ground

that a different or better view is possible. It is well settled that

a challenge to Legislation cannot be decided on the basis of

there being another view which may be more reasonable or

acceptable. A matter within the legislative competence of the

legislature has to be left to the discretion and wisdom of the

latter so long as it does not infringe any Constitutional

provision or violate the Fundamental rights.

The secrecy of ballot is a vital principle for ensuring free

and fair elections. The higher principle, however, is free and

fair elections and purity of elections. If secrecy becomes a

source for corruption then sunlight and transparency have the

capacity to remove it. We can only say that Legislation

pursuant to a legislative policy that transparency will

eliminate the evil that has crept in would hopefully serve the

larger object of free and fair elections.

We would like to recall the following views of this Court

in Indira Nehru Gandhi v. Raj Narain: -

"672. The contention that "democracy" is

an essential feature of the Constitution is

unassailable. \005\005\005 If the democratic

form of government is the cornerstone of

our Constitution, the basic feature is the

broad form of democracy that was known

to Our Nation when the Constitution was

enacted, with such adjustments and

modifications as exigencies may demand

but not so as to leave the mere husk of a

popular rule. Democracy is not a

dogmatic doctrine and no one can

suggest that a rule is authoritarian

because some rights and safeguards

available to the people at the inception of

its Constitution have been abridged or

abrogated or because, as the result of a

constitutional amendment, the form of

government does not strictly comport

with some classical definition of the

concept. The needs of the nation may call

for severe abnegation, though never the

needs of the rulers and evolutionary

changes in the fundamental law of the

country do not necessarily destroy the

basic structure of its government. What

does the law live for, if it is dead to living

needs? \005\005..."

(emphasis supplied)

Thus, we do not find merit in any of the contentions

raised by the petitioners to question the Constitutional validity

of the introduction through the impugned amendment of

"open ballot" system of election to fill the seats of the

representatives of States in the Council of States.

It is provided in Article 80 (2) that allocation of seats in

the Council of States to be filled by the representatives of

States and the Union Territories shall be in accordance with

the provisions in that behalf contained in the Fourth

Schedule. In Article 80(4), it is provided that the

representatives of each State shall be elected by the elected

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Members of the Legislative Assemblies of the States in