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.
Kuldip Nayar v. Union of India, (2003)
This was the case of ‘Kuldip nayar v. Union of India’, when the supreme court considered the question of domicile for the election of Rajyasbha Member. A writ petition was filed by veteran journalist Kuldip nayar challenging the amendment made in the Representation of People Act, 1951 through Representation of People (Amendment) Act, 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 was deleted which according to the petitioner violates the principle of Federalism, a basic structure of the Constitution.
In the writ petition, there was 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 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.
The effect of the amended Rules on ballot paper, was 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.
Questioned Provisions of RP Act, 1951
Text of the Statute before the Amending Act 2003, from 1951 upto 2003, Sections 3, 59, 94 and 128 were as follows:
“3. Qualification for membership of the Council of States. – A person shall not be qualified to be chosen as a representative of any State or Union territory in the Council of States unless he is an elector for a Parliamentary Constituency in that State or territory.
59. Manner of voting at elections. – At every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed and no votes shall be received by proxy.
94. Secrecy of voting not to be infringed. – No witness or other persons shall be required to state for whom he has voted at an election.
128. Maintenance of secrecy of voting. – (1) Every officer, clerk, agent or other person who performs any duty in connection with the recording or counting of votes at 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, 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.”
The effect of the amendment to Section 3 of RP Act, 1951, brought about by Act, 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.
Issues before the Court
Thus, two issues arose before the court-
The first issue related 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.
Brief Union Legislative Framework in India
Before analysing further, it is necessary to get the idea of legislative framework of Union.
Rajya Sabha 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 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”.
Analysis through contentions and their answers
I Issue- Requirement of Residence
We will decode the judgment by presenting the contentions and court’s answer on them.
Against the principle of Federalism
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.
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.
On the other hand, Solicitor General of India, contended that, 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 word “States” appearing in clause (4) of Article 80 does not comprise the requirement of residence.
In answer of these contentions, court said that, in entire legislative history, 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. 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.
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.
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 Sabha Member does not “ordinarily reside” in the State from which he is elected.
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
It was argued that it was the Provisional Parliament, which succeeded the Constituent Assembly, that had passed the RP Act, 1951.
The court’s answer was that, if that reasoning was 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.
Argument on distinction between ‘representative’ and ‘member’
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”.
There is thus no distinction between the expressions ‘members’ and ‘representatives’. The submissions of the learned Counsel are untenable.
If the Constitution had intended that the “representatives” of the States must be residents of the State or must have a link or nexus with the State from where the representatives are chosen, that is, link or nexus of the kind mentioned by the petitioners, such a 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.
The final conclusion of the court on the issue of ‘residence’
The court concluded that, 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.
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.
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.
The impugned amendment to Section 3 of the RP Act, 1951 cannot be assailed as unconstitutional.
II Issue- Open ballot system
It was contended on behalf of petitioner 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.
It was 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.
On behalf of respondent, it was 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.
It was the contention of the writ petitioners that free and fair election is a constitutional right of the voter, which includes the right that a voter shall be able to cast the vote according to his choice, free will and without fear, 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”.
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 Tenth Schedule to the Constitution. Union of India contended 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”.
While accepting the contention of Union of India’s contention on misbehaviour and lack of discipline among members, the court said that, 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.
The Parliament, therefore, necessarily legislated to provide for an open ballot. A multi party democracy is a necessary part of the basic structure of the Constitution. An amendment to law intended to restore popular faith in parliamentary democracy and in the multi party system cannot be faulted. The principle of secrecy is not an absolute principle. The legislative Amendment cannot be struck down on the ground that a different or better view is possible.
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.
Thus, the court did 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.
The court finally held that, the impugned amendment does not infringe any Constitutional provision. It cannot be found to be violative of fundamental rights in Part III of the Constitution. It is not disputed that Parliament has legislative competence to enact the amending Act. In these facts and circumstances, the impugned legislation cannot be struck down as unconstitutional.
Kuldip Nayar v. Union of India, (2003)