The case of Kuldip Nayar v. Union of India (2006) deals with the amendments to the Representation of People’s Act, 1951 where, initially it required for the electors to have a “domicile” in the State concerned for getting elected to the Council of States, which was subsequently deleted by the said amendment in 2003. And, with the introduction… Read More »

The case of Kuldip Nayar v. Union of India (2006) deals with the amendments to the Representation of People’s Act, 1951 where, initially it required for the electors to have a “domicile” in the State concerned for getting elected to the Council of States, which was subsequently deleted by the said amendment in 2003. And, with the introduction of “open ballot system” for the election of the Members of Council of States, the question was raised as to the infringement of the...

The case of Kuldip Nayar v. Union of India (2006) deals with the amendments to the Representation of People’s Act, 1951 where, initially it required for the electors to have a “domicile” in the State concerned for getting elected to the Council of States, which was subsequently deleted by the said amendment in 2003. And, with the introduction of “open ballot system” for the election of the Members of Council of States, the question was raised as to the infringement of the fundamental rights of the electors.

Citation: (2006) 7 SCC 1 : AIR 2006 SC 3127

Coram: Y.K. Sabharwal (CJI), K.G. Balakrishnan (J), S.H Kapadia (J), C.K. Thakker (J), P.K. Balasubramanyan (J)

Factual Background

The petitioner Kuldip Nayar, an Indian journalist challenged amendments made in the Representation of People Act, 1951 whereby, the requirement of domicile in the State concerned for getting elected to the Council of States was deleted violating principles of federalism. And, a further challenge was made to the amendments in Sections 59, 94, & 128 of the same act by which Open Ballot System was introduced which according to the petitioner was in violation of the principle of ‘secrecy’ thus infringing the fundamental right of citizens voting.

Issues Involved

  1. Whether the deletion of the requirement of ‘domicile’ in the state concerned was in violation of the principle of Federalism?
  2. Whether the introduction of the ‘Open Ballot System’ was in violation of the concept of free and fair elections infringing the voter’s freedom of expression under Article 19(1)(a) of the constitution?

Petitioners Arguments

  1. The deletion of the requirement of ‘domicile’ in the State concerned for getting elected to the Council of States (Rajya Sabha) in Section 3 of the Representation of People’s Act violated the principle of Federalism which is the basic structure of the Constitution & also distorting the balance of power between the Union and the States.
  2. The nomenclature ‘Council of States’ indicates the federal character of the Rajya Sabha and who does not belong to the State concerned cannot effectively represent the State.
  3. The introduction of the Open Ballot System violating the principle of secrecy which as per the petitioner is the essence of democracy infringing the freedom of expression of the voters under Article 19(1)(a), provisions of Representation of People’s Act 1951, Universal Declaration of Human Rights & International Covenant on Civil and Political Rights.

Respondents Arguments

  1. Parliamentary Debates and the Report of the Standing Committee indicate 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.
  2. The Constitution under Article 19(1)(e) guarantees the freedom to a citizen to choose a residence of his choice and vote as per their convenience.
  3. The reports of the Ethics Committee was considered according to which the secret ballot system had become counterproductive as opposed to the effective implementation of the principles of democratic representation of states in Rajya Sabha.

Judgement | Kuldip Nayar v. Union of India (2006)

The representatives of a 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 as deliberated under Article 80(1)(b) and 80(4). This method of election ensures that only such members are chosen for Rajya Sabha as are cognizant with the needs and attitudes of the State concerned.

It also underlines the idea that Rajya Sabha represents the State as such. However, the nature of Federalism in the Indian Constitution is not res integra. The five-judge bench refuting the contentions of the petitioners held that as long as the State has a right to be represented in the Council of States by its chosen representative who are the citizens of the county the doctrine of federalism enshrined is not affected.

The Court also referred to the legislative history of constitutional enactments like the Government of India Act, 1935 and said that the residence or domicile is not the essential ingredients of the structure and composition of the Upper House and said that residence was never the constitutional requirement and has been treated just as a matter of qualification.

The residential requirement for membership to the Upper House of the Parliament is not an essential basic feature of the Federal Constitution. The Constitution of India does not cease to be federal simply because the Rajya Sabha Member does not “ordinarily reside” in the state from which he is elected.

The Bench also upheld the amendment in the Representation of People’s Act 1951 that introduced an open ballot system holding that voting for the elections of Council of States cannot be compared with general elections as in the general election there is no party affiliation and therefore the choice is entirely with the voter which is not the case with the elections of the Council of States. As the electors for the Upper House are elected members of legislative assemblies have specified party affiliations.

In the case of direct elections, there has to be secrecy but in the case of indirect elections 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.

Referring to the case of People’s Union For Civil Liberties & Anr. v. Union of India & Anr. [(2003) 4 SCC 399] where 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 and expanding this view the Bench suggested in this case that the manner of voting in the election to the Council of States can be definitely regulated by the Statute.

The Constitution does not provide that voting for an election to the Council of States used to be by secret ballot but it cannot be said that secret ballot in all forms of elections is a Constitutional Right. By this amendment, the right to vote is not being taken away but the elector has to just disclose the way he cast the vote to the representative of his Party as the elections of the Upper House is indirect making it essential for the purity of elections.

The amendments in Section 3, 59, 94 and 128 of the Representation of the People Act, 1951 by the Representation of the People (Amendment) Act, 2003 (40 of 2003) has been made in exercise of the powers conferred on the Parliament under Article 246 read with Article 84 and 327 and Entry 72 of the Union List of the Seventh Schedule to the Constitution. Therefore, cannot be said to be violative of Fundamental Rights in Part III of the Constitution.

The Parliament has the legislative competence to enact the amending Act and therefore, the impugned legislation was not struck down as unconstitutional.

The Bench highlighted that the purpose behind such amendment was to avoid cross-voting and wipe out evils of corruption & maintain the integrity of the democratic setup therefore can be justified by the State under Article 19(2) of the Constitution constituting reasonable restriction to the freedom of expression under Article 19(1)(a).

Conclusion

In this landmark judgement, it was held that in order to be elected to the Council of States, a person need not be a representative of the State beforehand nor an elector or a voter registered or a resident in the State itself. It is only when he is elected to represent the State that he becomes a representative of the State. Therefore, 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 House of Parliament.

The Supreme Court, therefore, found no merits in the contentions of the petitioners regarding the Constitutional validity of the introduction of the ‘open-ballot’ for the elections to the Council of States.


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Updated On 2022-01-19T05:34:58+05:30
Ritika Chaturvedi

Ritika Chaturvedi

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