# KULDIP NAY AR v. UNION OF INDIA AND ORS

- **Citation:** [2006] Supp. 5 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2006-08-22
- **Bench:** Y.K. Sabharwal, K.G. Bala.Krishnan, S.H. Kapadia, B C.K. Thakker, P.K. Balasubramany An
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kuldip-nay-ar-v-union-of-india-and-ors-21859
- **Pages:** 184

## Headnote

~
Representation of People Act, I950; Ss.I3, I4, I5, I7, I8, I9 & 201
Representation of People Act, 1951; Ss. 3, 59, 94 and I28 with Amendment c
Act 40 of 2003/Constitution of India, I950; Articles 19, 55, 66, 80, 249, 25I,
324, 327, 368 and 379; Ent1y 72 of the Union List and Tenth Schedule to
the Constitution/Government of India Acts, I915, 1919 and 1935/Rules of
Procedure and the Conduct of Business in the Lok Sabha; Rules 7, 8, 364,
365, 367 and 367A, 367B!Rules of Procedure and Conduct of Business in the
Council of States: Rules 7, 252, 253 and 254:
D
~
Election to the Council of States-Eligibility-Requirement of domicile
of the State to be represented-Deletion of by amendment from R.P. Act,
1951-Constitutionality of-Held: The legislative history of the Constitution
reveals that residence has never. been the constitutional requirement for
E
constitution of the upper House-Residence is an incident of federalism
which could be regulated by the Parliament as qualification, a subject matter
under Article 84 of the Constitution-Amendment, so made, does not change
the character of the Council of the States as the election remain the law, ihe
elected member remain representatives of the State and the choice and the
decision as to elect the representative would remain with the State F
~
Assemblies-It does not affect the role, fi1ture prerogatives of the members of
the Council of States especially in the matter of legislation-Only the scope
of consideration for election to the Council of States has been enlargedIt is passed by the Parliament in its legislative competence, without
transgressing the provisions of Part-Ill of the Constitution or any other
~·
provisions of the Constitution, hence not unconstitutional.
G
·,~
Amendment in R.P. Act, 1951-Principle of Federalism-Effect of
amendment-Held: Federal Principle dominant in the Constitu'ion and is
one of its basic features but it is not territory related-It is not the requirement
,,,.
~
H
2
SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.
A of such principle that the representative of the States must belong to that
State-It is the electorate who would represent the interest of the StateHence, deletion of the requirement of residential qualification by the
Parliament would not amount to violation of the basic features of federalismThough the provision of residence/domicile existed in the 1951 Act, a Statutory
B Act, but it was not the constitutional requirement, hence its removal therefrom by wizy of the amendment is not unconstitutional and could not be
challenged under the provi~ions of Article 368 of the Constitution.
Role of Members of Council of States in protecting the interest of the
State-Held: They do not vote in the Parliament at the dictate of the State
C concerned, but according to their own views and party affiliation.
Members of Council of States-Qualifications of-Held: The provisions
under Article 243 of the Constitution do not add the requirement of domicile
to the qualification for membership of the Council of States.
State Representatives -Residence as qualification-Held: In the absence
D of express requirement of residence as a qualification, it cannot be read into
Articles 80 and 84 of the Constiflltion.
E
Power of Parliament in amending R.P. Act, 1951-Held: 1951 Act is
enacted by the Parliament like any other law-Hence, Parliament is
empowered to bring about amendments in it like any other Statute.
Power of Parliament in changing law relating to election-Held: The
Parliament is empowered to bring in such legislation-Articles 80(4) and
327 of the Constitution.
'Right to vote' and 'free and fair election '-Relation between-Held:
F Right to vote is not an ingredient of the free and fair elections-In fact, right
to vote is a concept which yield to a concept of the attainment of free and
fair election.
Election to the Council of States-Provisions not allowing outsiders to
contest the election-Removal of-Held: Justified, by allowing the outsider
G to contest the electi

## Text

_Characters 0–39,896 of 458,120. This is a partial read: ask again with offset=39896 for what follows._

1
KULDIP NAY AR
A
v.
UNION OF INDIA AND ORS.
AUGUST 22, 2006
[Y.K. SABHARWAL, CJ., K.G. BALA.KRISHNAN, S.H. KAPADIA,
B
C.K. THAKKER AND P.K. BALASUBRAMANY AN, JJ.]
~
Representation of People Act, I950; Ss.I3, I4, I5, I7, I8, I9 & 201
Representation of People Act, 1951; Ss. 3, 59, 94 and I28 with Amendment c
Act 40 of 2003/Constitution of India, I950; Articles 19, 55, 66, 80, 249, 25I,
324, 327, 368 and 379; Ent1y 72 of the Union List and Tenth Schedule to
the Constitution/Government of India Acts, I915, 1919 and 1935/Rules of
Procedure and the Conduct of Business in the Lok Sabha; Rules 7, 8, 364,
365, 367 and 367A, 367B!Rules of Procedure and Conduct of Business in the
Council of States: Rules 7, 252, 253 and 254:
D
~
Election to the Council of States-Eligibility-Requirement of domicile
of the State to be represented-Deletion of by amendment from R.P. Act,
1951-Constitutionality of-Held: The legislative history of the Constitution
reveals that residence has never. been the constitutional requirement for
E
constitution of the upper House-Residence is an incident of federalism
which could be regulated by the Parliament as qualification, a subject matter
under Article 84 of the Constitution-Amendment, so made, does not change
the character of the Council of the States as the election remain the law, ihe
elected member remain representatives of the State and the choice and the
decision as to elect the representative would remain with the State F
~
Assemblies-It does not affect the role, fi1ture prerogatives of the members of
the Council of States especially in the matter of legislation-Only the scope
of consideration for election to the Council of States has been enlargedIt is passed by the Parliament in its legislative competence, without
transgressing the provisions of Part-Ill of the Constitution or any other
~·
provisions of the Constitution, hence not unconstitutional.
G
·,~
Amendment in R.P. Act, 1951-Principle of Federalism-Effect of
amendment-Held: Federal Principle dominant in the Constitu'ion and is
one of its basic features but it is not territory related-It is not the requirement
,,,.
~
H
2
SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.
A of such principle that the representative of the States must belong to that
State-It is the electorate who would represent the interest of the StateHence, deletion of the requirement of residential qualification by the
Parliament would not amount to violation of the basic features of federalismThough the provision of residence/domicile existed in the 1951 Act, a Statutory
B Act, but it was not the constitutional requirement, hence its removal therefrom by wizy of the amendment is not unconstitutional and could not be
challenged under the provi~ions of Article 368 of the Constitution.
Role of Members of Council of States in protecting the interest of the
State-Held: They do not vote in the Parliament at the dictate of the State
C concerned, but according to their own views and party affiliation.
Members of Council of States-Qualifications of-Held: The provisions
under Article 243 of the Constitution do not add the requirement of domicile
to the qualification for membership of the Council of States.
State Representatives -Residence as qualification-Held: In the absence
D of express requirement of residence as a qualification, it cannot be read into
Articles 80 and 84 of the Constiflltion.
E
Power of Parliament in amending R.P. Act, 1951-Held: 1951 Act is
enacted by the Parliament like any other law-Hence, Parliament is
empowered to bring about amendments in it like any other Statute.
Power of Parliament in changing law relating to election-Held: The
Parliament is empowered to bring in such legislation-Articles 80(4) and
327 of the Constitution.
'Right to vote' and 'free and fair election '-Relation between-Held:
F Right to vote is not an ingredient of the free and fair elections-In fact, right
to vote is a concept which yield to a concept of the attainment of free and
fair election.
Election to the Council of States-Provisions not allowing outsiders to
contest the election-Removal of-Held: Justified, by allowing the outsider
G to contest the election, the Parliament has in fact widened the choice of the
elections without altering its character.
Right to vote in secrecy-Effect of Proviso added to Sections 59, 94 and
148 of R.P. Act, 1951 providing for open ballot as an exception to the general
rule of secrecy in the election for the Council of the States-Held: It does not
H affect on right to vote of the members as the Constitution itself has provided
•
KULDIPNA YAR v. U.0.l.
3
for election by secret ballot only where it thought fit to do so-However, ii A
is silent so far as election to the Council of the States is concerned-Though
Election Commission is empowered under Article 324 to act and advice in
such circumstances for the purpose of pursuing the goal of fi"ee and fair
election, but the Parliament is not bound by such advice in ter111s of provisions
under Article 327 of the Constitution.
Open ballot syste111 in preference to secret ballot syste111Disqualification under the tenth schedule of the Constitution-Held: It cannot
~.
be said that the open ballot system tends to expose the members of the
Legislative Assembly disqualification under the tenth Schedule since that
B
part of the Constitution is meant for different purposes.
C
Amendment-Introduction of Open Ballot System in lieu a/Secret Ballot
System-Implication and justification of-Held: Open ballot system does not
mean open to one and all-In terms of the amendment, only the authori::ed
agent of the political party is allowed to see the ballot-However, the
prerogative would remain with the voter to choose as to whether or not to D
show it to the awhorized agent, though liable to be cancelled in the event
voter chose not to show it to the agent-fl.foreover, where elections are direct
as in general elections, secret voting could be insisted upon as the voters
have no party affiliation, but in case of indirect election. the open ballot
syste111 can be introduced as it is 111erely a reg1tfato1J' method to stern 011/ E
corruption, to ensure free and fair elections and to maintain purity of
elections-Principle of secrecy is not an absolute principle, the legislative
amendment cannot be struck down on the ground that different or better view
is possible-Though secrecy of ballot is a vital principle for ensuring free and
fair elections, however, if secrecy becomes a source of corruption the legislature
have the capacity to remove it to serve the larger object of conducting free F
and fair elections.
Right to vote-Open ballot system-Imposing of reasonable restriction
in ter111s of Article 19(2) of the Constitution-Held: Open baffot 11yste111 is in
the interest of maimaining and protecting discipline in the political partiesIt also prevents cross voting-Hence, ii amounts to imposing of reasonable G
restriction in terms of Article 19(2) of the Constitution, but it cannot be
construed that by doing so the right to vote is taken away as each elected
member of the State Assembly would be fi1lly entitled to vote for the Council
of the States subject to the only restriction of disclosing to the representative
of his party, to whom he has cast the vote.
H
A
4
SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.
Doctrines:
Doctrine of cuntemporanea expositio-Applicability of-Held: Not
applicable as irrelevant in the facts and circumstances of the case.
Words and Phrases:
B
·candidate' and 'the States '-Nexus between in the context of election
to the Council of States-Discussed.
'Each '-Meaning of in the conlext of Article 80 of the Constitution.
'Ordinarily Resident '-Meaning and nature of in the context of
C Constitutional provisions.
'Ordinmy residence '-Meaning of in the context of qualification for
membership of either Houses of Parliament.
'Representative of the Stale '-Meaning of-Held: The words
'representative of the State' do not in any manner connote that the elector!
D representative must also he an elector /voter registered in the State concerned.
The petitioner has filed writ petitions challenging the amendments made
in the Representation of People Act, 1950, whereby the requirement of
"domicile" for getting elected a person to the Council of States is deleted. He
has challenged it on the ground of violation of the Principle of Federalism,
E basic structure of the Constitution; the petitioner has also challenged the
amendments made in Sections 59, 94 and 128 of the Representation of People
Act, 1951, whereby 'Open Ballet System' in lieu of 'secret voting' is introduced
in the election of members of the Council of States as it violates the principle
of 'secrecy', the essence of free and fair elections as also violating the voter's
F freedom of expression, the basic feature of the Constitution and the subject
matter of the fundamental right under Article 19(1)(a) of the Constitution.
Petitioner contended that the impugned amendment to Section 3 of the
RP Act, 1951 offends the principle of Federalism, the basic feature of the
Constitution; it seeks to change the character of republic which is the
G foundation of our democracy; that it distorts the balance of power between the
Union and the States and is, therefore, violative of the provisions of the
Constitution; that the reasons given in the Statement of Objects imd Reasons
for the Amendment Act do not provide for any rational justification for the
impugned amendment; that the reasons given in affidavit in reply, by Union of
India, to justify the impugned amendment for amending Section 3 are different
H from the reasons given in the Statement of Objects and Reasons for the Bill;
~
KULDlPNA YAR v. U.0.1.
5
that the nomenclature "Council of States" indicates the federal character of A
the House and a representative who is not ordinarily resident and who does
not belong to the State concerned cannot effectively represent the State; that
India has adopted parliamentary system of democracy in which the Union
Legislature is a bi-cameral legislature, that such legislature represents the
will of the people of the State whose cause has to be represented by the B
members; that the impugned amendments in the Representation of People Act,
1951 removes the distinction in the intent and purpose of Lok Sabha and Rajya
Sabha; that the mere fact that there exist numerous instances of infringement
of the law concerning the requirements of residence cannot constitute a valid
object or rational reason for deleting the requirement of residence; that the
Constitution and the Representation of People Acts 1950 and 1951 respectively c
have always been read as forming part of an integral scheme under which a
person ordinarily resident in a constituency is entitled to be registered in
the electoral roll of that constituency; that the scheme guarantees the
representative character of the Council; that by deletion of the word 'domicile'
or 'residence' or by not reading the word 'domicile' or 'residence' in Article
D
80(4) of the Constitution, the basic requirement of the representative federal
body stands destroyed; that requirement of domicile is so intrinsic to the
\
concept of Council of States that its deletion not only negates the constitutional
I
scheme making the working of the Constitution undemocratic but also violates
the federal principle which is one of the basic features of the Constitution;
that in terms of the amended Sections 3 and 4 of the 1951 Act, one can get E
elected as people's representative in the House of the People for a constituency
in one particular State even though one is an elector registered as such in a
Parliamentary constituency in another State; that by the impugned amendment
in Section 3, the qualification for Membership of the Council of States is
"equated" with that of the House of the People; that the impugned amendment
F
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 a particular State can now be chosen to be a
representative of such State, only by virtue of being so elected to the Council
of States by the Members of the Legislative Assembly of such State; that the
need for a Second Chamber viz. the Council of States has become redundant, G
in that it now merely duplicates the House of the People; that as a result of
the impugned amendment, the person elected to the Council of States, if he is
at all "representative" of anyone, he is only a representative of the State
Assembly that elected him and not a "representative" of the State, as he was
1.
required to be under Article 80 of the Constitution; that the law enacted by
Parliament had to prescribe some connection between the person standing H
6
SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.
A for election and the State that he is to represent in the Council of States,
which is now missing; that the words "representatives of the States" in Article
80(1 )(b) and (2) and the words "representatives of each State in the Council
of States" in Article 80(4) need to be interpreted in such a manner that it
tends to strengthen the basic structure of the Constitution; that the use of
B the word "each" in Article 80(4), in relation to representation of States in
the Council of States was not without significance, in as much as the stress
is on providing representation to "each State" so as to give to the House the
character of a body representing the States; that Article 80 does require the
person in question to first be a representative of the State before he is elected
by the elected members of the Legislative Assembly of that State; the mere
C fact of election by particular State Assembly of any "elector" in India cannot
render that person as being "qualified" to represent that State; that the
impugned amendment had failed to provide alternative additional qualification,
since any citizen of India, resident anywhere in India, can now be elected by
any State Assembly even when his registration as an elector is, outside that
State; no further additional qualifications are provided to indicate his or her
D usefulness in the debates or discourses to take place in the Council of States;
that by the impugned amendment a 'qualification' has been introduced which
is not a qualification at all, and which only means that anyone in India who is
1
on the electoral roll of any Parliamentary Constituency in India can be chosen
by any State Assembly in India as a representative of that State in the Council
E of States; that by the impugned amendment, Parliament has whilst purporting
to set up "qualification" for membership to the Council of States failed to
have due regard to the expression "representative of the State" in Article
80; that the impugned amendment violates the right of secrecy by resorting
to open ballot system that is nothing but a political move by clique in political
parties for their own achievement; that the impugned amendments violate the
F Fundamental Right under Article 19(l)(a) of the Constitution as well as the
provisions in the Representation of the People Act, 1951, Universal Declaration
of Human Rights and International Covenant on Civil and Political Rights;
that free and fair election is a concept inherent in the democratic values
adopted by our polity; that right to vote in an election under the Constitution
G of India, which includes the election of the representatives of States in the
Council of States, is a Constitutional right, if not a Fundamental right; that
the right to vote be invariably accompanied by the right of secrecy of vote so
as to ensure that the freedom of expression through vote is real; that the fact
that election to fill the seats in the <;:ouncil of States by the legislative
assembly of the State involves 'voting', the principles of Tenth Schedule are
H attracted; that the application of the Tenth Schedule itself shows that open
1
KULDIPNA YAR v. U.0.1.
7
-1
ballot system tends to frustrate the entire election process, as also its sanctity A
and also the provisions of the Constitution and the RP Act; that the open ballot
system, coupled with the looming threat of disqualification under the Tenth
Schedule reduces the election to a political party issuing a whip and the
candidate being elected by a show of strength. This will result in people with
moneybags occupying the seats in the Council of States; that International" B
Instruments put emphasis on "secret ballot" since it lays the foundation for \
ensuring free and fair election which in turn ensures formation of a
democratic Government showing the true will of the people; that the secrecy
~
of voting has always been the hallmark of the concept of free and fair election,
thus very essential for the democratic principles adopted in our polity; that
this is the spirit of our.constitutional law and also universally accepted norm c
and any departure therefrom in this respect impinges on the fundamental
rights, in particular freedom of expression by the voter; that the sanctity and
purity of election where voter casts his choice without any fear and favour
can be ensured only if it is by secret ballot; that the Election Commission of
India, which under the Constitution has been given the plenary powers to D
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; and that the observations of the Ethics Committee on which the
impugned amendment was brought about not only fail to justify the amendment
but also run counter to the Constitutional scheme of conducting free and fair
election.
E
Union of India submitted that the impugned amendments became
necessary in view of various deficiencies experienced in the working of the
Representation of People Act, 1951; that these amendments did not alter or
distort the character of the Council of States; that the concept of residence/
domicile is a matter of qualification under Article 84(C) of the Constitution F
which is to be prescribed by the Parliament; that the members of the
~
Legislative Assembly are in the best position to decide as to who would
""'
represent thern in the Council of States; that by the impugned amendment,
the qualification is made more broad based and that the amendment became
necessary for ensuring representation of unrepresented States; that there is G
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; that basic structure doctrine is
inapplicable to Statutes; that the Constitution does not prescribe any
~
mandatory requirement that the elected member should be an elector in the H
8
SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.
A State from where he is elected; that several persons whose presence could
add to the quality of debates and proceedings in the Council of States had,
under the dispensation before amendment, been constrained to enroll
themselves as voters in another State and unless they did so, the State would
remain unrepresented in the Council of Ministers due to the non-availability
B of such talented members, and thus, the opening out of the residential
provision was meant to help in this regard; that the Constitution under Article
19(1)(e) guarantees the freedom to a citizen to choose a residence of his
choice; that it was pursuant to the view expressed by the Ethics Committee of
the Parliament in its report dated 1st December, 1998, in the wake of
"emerging trend of cross voting in the Raj ya Sabha and Legislative Council
C elections", the proposal for the elections "by open ball«Jt" was examined and
the Union of India incorporated such provision through the impugned Act;
that "secret ballot is not an inflexible or mandatory procedure" for ensuring
free and fair elections and so the provision for open ballot system has been
incorporated having regard to "the emerging trends in the election process
and as warranted by a rational, reasonable, democratic objective"; that the
D Tenth Schedule does not apply to the election in the Council of States and it
has no application to the election conducted under the RP Act. Nonetheless,
the principles behind making the elections by open ballot furthers the
Constitut:onal provisions in the Tenth Schedule; and that since the bulk of
the candidates are elected under the party system, the principle that a person
E elected or given the nomination of a party should not be lured into voting
against the party by money power is wholesome and a salutary one.
It was submitted for the State of Tamil Nadu that the principle of
'contemporanea expositio' is relevant for interpreting the words "the
representative of each State" in Article 80(4) of the Constitution; that the
F RP Acts 1950 and 1951 are contemporaneous legislations made by the
Constituent Assembly itself acting as provisional Parliament and that they
are useful aid for the interpretation of Articles 79 and 80 of the Constitution,
just as subordinate legislation is for interpreting an Act; that only a person
belonging to a State will have the capacity to represent the State in the Upper
G House and that a person could claim to belong to a State only by birth, domicile
or residence; that some visible nexus between the State and the person seeking
to be its representative is a must in the scheme of the Constitution; that the
words "representatives of the States" in Article 80(1)(b) and (2) and the words
"representatives of each State in the Council of States" in Article 80( 4) need
to be interpreted in such a manner that they would strengthen the basic
H structure of the Constitution, having due regard to its federal character and
,
~li
1
,... ,
~ '
..
KULDIPNAYAR v. U.0.1.
9
the foundational feature of democracy.
Dismissing the Writ Petitions, the Court
HELD: l. l. The Constitution has established a federal system of
Government with bi-camera! legislature at the Centre which is not something
which was grafted in the Constitution for the first time. Its history goes back
to Government of India Act, 1915 as amended in 1919. Even under the
Government of India Act, 1919, the qualification of residence in relation to a
particular constituency was considered to be unnecessary. This position is
indicated by Rule XI of the then Electoral Rules. This position is also indicated
by the provisions of the Government of India Act, 1935 under which the
Legislature at the Centre was bi-cameral. (42-B-CI
1.2. The rule of interpretation says that in order to discern the intention
behind the enactment of a provision if ambiguous and to interpret the same,
one needs to look into the historical legislative developments. (41-F(
Re: Special Reference No. 1 of 2002 12002] 8 SCC 237, relied on.
1.3. Clause 60 of the first draft Constitution states that all matters
relating to or connected with elections to either House of the Federal
Parliament shall be regulated by the Fourth Schedule, unless otherwise
provided by the Act of the Federal Parliament. However, the Fourth Schedule
A
B
c
D
was omitted by the Drafting Committee. Therefore, with this deletion, the E
requirement of residence was done away with. It shows that residence was
never the constitutional requirement. [43-D-E-Fl
l.4. The legislative history shows that qualification of residence has
never been a constant factor. The ownership of assets, dwelling house, income,
residence etc. were considered as qualification from time to time depending F
upon the context and the ground reality. The power to add qualifications was
given to the Federal Parliament. Therefore, the legislative history of
constitutional enactments shows that residence or domicile are not the
essential ingredients of the structure and the composition of the Upper House.
143-F-G-Hl
1.5. Residence is a matter of qualification. Therefore, it comes under G
Article 84 which enables the Parliament to prescribe qualifications from time
to time depending upon the fact situation. Unlike USA, residence is not a
constitutional requirement in India. In the context of Indian Constitution,
residence/domicile is an incident of federalism which is capable of being
regulated by the Parliament as a qualification which is the subject matter of H
10
SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.
A Article 84 of the Constitution. 144-G-H; 45-AI
,.
.....
2.1. Although the Rajya Sabha is designed to serve as a Chamber where
the States and the Union of India are represented, in practice, it does not act
as a champion of local interests. Even though elected by the State Legislatures,
B
its members vote not at the dictate of the State concerned, but according to
their own views and party affiliation.145-E-FI
2.2. The Indian union has been described as the 'holding together' of
different areas by the constitution framers, unlike the 'coming together' of
constituent units as in the case of the U.S.A. and the confederation of Canada.
Therefore, the Rajya Sabha is vested with a contingency based power over
t"
c state legislatures under Article 249, which contributes to the 'Quasi-federal'
nature to the Government of the Indian union.146-D-EI
2.3. Article 251 when read with Article 249 of the Constitution provides
that in case of inconsistency between a law made by parliament under Article
D 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 Raj ya Sabha to encroach upon the specified legislative competence of a
state legislature by declaring a matter to be of national importance. Though
it may have been incorporated as a safeguard in the original constitutional
scheme, this power allows the Union Government to interfere with the
E functioning of a State government, which is most often prompted by the
existence of opposing party-affiliations at the Central and State level.
[46-F-G-HI
2.4. The nature of Federalism in Indian Constitution is no longer res
F
integra. There can be no quarrel with the proposition that Indian model is
broadly based on federal form of governance.147-A-B]
2.5. The federal principle is dominant in our Constitution and that
principle is one of its basic features, but, it is equally true that federalism
-
under Indian Constitution leans in favour of a strong centre, a feature that
G militates against the concept of strong federalism. [53-D-Ef
S. R. Bommai & Ors. v. Union of India & Ors., AIR (19941 SC (1918) :
[199413 SCC I, followed.
State of West Bengal v. Union of India, f 1964] I SCR 371; Re: Under
H Article 143, Constitution of India, (Special Reference No. l of 1964) AIR
i
1
KULDIPNA YAR v. U.0.1.
11
,
(1965) SC 745; State of Karna/aka v. Union of India & Anr .. ( 19781 2 SCR A
I; State of Raiasthan &. Ors. v. Union of India Etc. Etc., ( 1978) I SCR I; ITC
ltd v. Agricultural Produce Market Committee & Ors., (2002) 9 SCC 232
and State of West Bengal v. Kesoram Industries ltd & Ors., AIR (2005) SC
1646: (2004110 sec 201, relied on.
2.6. India is not a federal State in the traditional sense of the term. There B
can be no doubt as to the fact, and this is of utmost significance for purposes
at hand, that in the context of India, the principle of federalism is not territory
related. This is evident from the fact that India is not a true federation formed
by agreement between various States and territorially it is open to the Central
Government under Article 3 of the Constitution, not only to change the c
boundaries, but even to extinguish a State. Further, when it comes to
exercising powers, they are weighed heavily in favour of the Centre. (55-E-FJ
State of West Bengalv. Union of India, (1964] 1SCR371, referred to.
2.7. The Constitution provides for the bicameral legislature at the center. D
The House of the People is elected directly by the people. The Council of States
is elected by the Members of the Legislative assemblies of the States. It is
the electorate in every State who are in the best position to decide who will
represent the interests of the State, whether as members of the lower house
or the upper house.155-G)
E
2.8. It is no part of Federal principle that the representatives.ofthe States
must belong to that State. There is no such principle discernible as an
essential attribute of Federalism. 155-H; 56-A)
2.9. It can safely be said that as long as the State· has a right to be
represented in the Council of States by its chosen representatives, who are F
citizens of the country, federalism is not affected. It cannot be said that
~
residential requirement for membership to the Upper House is an essential
basic feature of all Federal Constitutions. Hence, if the Indian Parliament, in
its wisdom has chosen not to require residential qualification, it would
definitely not violate the basic feature of Federalism. Our Constitution does G
not cease to be a federal constitution simply because a Rajya Sabha Member
does not "ordinarily reside" in the State from which he is elected.
[62-G-H; 63-AI
3.1. It is well settled that legislation can be declared invalid or
•
*
unconstitutional only on two grounds namely, (i) lack of legislative competence H
12
SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.
A and (ii) violation of any fundamental rights or any provision of the Constitution.
165-BI
Smt. Indira Nehru Gandhi v. Raj Narain, 119751 Supp SCC I, relied on.
3.2. The doctrine of 'Basic Feature' in the context of our Constitution,
B does not apply to ordinary legislation which has only a dual criteria to meet;
that it should relate to a matter within its competence; and that it should not
be void under Article 13 as being an unreasonable restriction on a fundamental
right or as being repugnant to an express constitutional prohibition.
(68-H; 69-A-BI
C
State of Karnataka v. Union of India & Anr., (19771 4 SCC 608,
D
followed.
State of Andhra Pradesh and Ors. v. McDowell & Company & Ors.,
119961 3 SCC 709 and Public Services Tribunal Bar Association v. State of
U.P. & Anr., (200314 SCC 104, relied on.
3.3. The basic structure theory imposes limitation on the power of the
Parliament to amend the Constitution. An amendment to the Constitution under
Article 368 could be challenged on the ground of violation of the basic
structure of the Constitution. An ordinary legislation cannot be so challenged.
The challenge to a law made, within its legislative competence, by Parliament
E on the ground of violation of the basic structure of the Constitution is thus
not available to the petitioners. Since 'residence' is not the constitutional
requirement for the purpose of election of the members of Parliament, the
question of violation of basic structure does not arise. (69-C-DI
In the matter of Special Reference No. I of 2002 (Gujarat Assembly
F Election case), 1200218 sec 237, relied on.
4.1. If the principle of contemporanea expositio is relevant for
interpreting the words "the representatives of each State" in Article 80( 4)
of the Constitution with reference to contemporary legislation made by the
Constituent Assembly acting as provisional Parliament just as subordinate
G legislation is used in order to construe the parent Act, but then, the fallacy of
the above approach to the subject lies in the fact that legislation by the
provisional Parliament did not produce a constitutional rule. It does not have
the sanctity or normative value of Constitutional Law. (75-C-D-EI
State of UP. & Ors. v. Babu Ram Upadhya, (196112 SCR 679 (CB);
H Desh Bandhu Gupta and Co. & Ors. v. Delhi Stock Exchange Association
..
'!
KULDIPNA Y AR v. U.0.1.
13
Ltd., IJ 97914 SCC 565; State of Tamil Nadu v. Mis. Hind Stone & Ors .. 11981 I A
2 SCC 205 and Commissioner of Income Tax, Jullundur v. Ajanta Electricals,
Punjab, 1199514 SCC 182, relied on.
4.2. The principle of "contemporanea expositio ', is totally irrelevant if
not misleading for present purposes. If the Constitution h11d used an
B
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 while amending it in 2003, the c
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 of residence)
to a Constitutional requirement and rather showed consciousness that the D
provision for qualifications might need to be revisited from time to time and,
therefore, finding it inadvisable to prescribe the same in the Constitution itself.
175-F-G-HI
4.3. The provision of residence existed, prior to impugned amendment,
in a Parliamentary law, the Representation of the People Act, 1951 but there E
is no express provision in the Constitution itself requiring residence as a
qualification. It cannot be said that amendment of the Act to remove what the
Constitution itself did not provide for, is unconstitutional. 176-A-BI
5.1. All enactments passed by provisional Parliament, including the RP
Act 1951, are laws like any other law made by Parliament. Accordingly, each F
of them is subject to power of Parliament to bring about amendments like
.l,
any other statute. 176-Cf
5.2. The proposition that the Constitution and the R.P. Acts though form
an integrated scheme of elections, but it does not follow that on this account
the domiciliary requirement in Section 3 of R.P. Act 1951 has to be treated G
as a constitutional requirement. 176-EI
.....
"-
6.1. The expression "representatives of States" as used in Article 80
and the expression "representation of States" as used in proviso (d) of Article
368(2) of the Constitution are not synonymous or employed in same sense. H
-~
These expressions are materially different and used in different context in
14
SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.
A the two provisions. This is clear from the simple fact that Article 80 is talking
of "representatives" of States in the Council of States while proviso (d) of
Article 368(2) pertains to "representation" of States in Parliament. The first
provision is of limited import while the latter has a wider connotation. Article
4 also uses the expression "representation in Parliament". It specifically
B excludes such amendments as contemplated in Articles 2 and 3 from the
requirements of the procedure prescribed in Article 368 for Constitutional
amendments. The expression "representation of States in Parliament", as
used in Proviso (d) to Article 368(2), therefore, cannot be of any use to the
case of the petitioners. [77-G-H; 78-A; G-Hl
C
6.2. Fourth Schedule to the Constitution lays down the number of persons
D
E
who would represent each State in the Council of States. This balance between
the various States is not at all affected by way of the legislation impugned in
the writ petitions at hand since the amendments made by the impugned Act
relates only to the residential qualification of the 'representatives' and is not
concerned with the "representation of the States" in Parliament. [80-G-H)
7.1. Article 79 leaves no doubt about the fact that House of the People
and the Council of States are both "Houses" of Parliament. The names given
to the two Houses are proper nouns and do not spell out any right or obligation,
much less limitations on Parliament's legislative power available to it under
Article 84(c) of the Constitution. [82-G-Hl
7.2. An elector has to be an ordinary resident of the Constituency in
which he is registered as such in view of the statutory requirements of
Sections 19 and 20 of the RP Act, 1950. There is no requirement in law that
the person elected must possess the same qualifications as the elector
F possesses. This is further clear from the scheme of the Constitution as is
evident from Article 171(3) of the Constitution. [96-F-Gl
7.3. The question of"ordinarily resident" is relevant for preparation
of electoral rolls and nothing further. This is evident from bare reading of
the scheme of provisions contained in RP Act, 1950, in particular Sections
G 130, 14, IS, 17, 18, 19 and 20 of the said Act. Electoral rolls are prepared
basically for assembly constituencies and revised year-wise. A conjoint
reading of Sections 17, 18, 19 and 20 shows that a person can get himself
registered as voter once in only one assembly constituency which must be
the one within which he is an ordinary resident. (97-F-G-H)
H
7.4. The qualification of "ordinarily resident" is provided for
..
•'
KULDIPNA Y AR v. U.0.1.
15
registration as a voter in a general election for deciding the place of voting A
by an elector and for the preparation of electoral rolls. Under our constitutional
scheme, Parliamentary or Assembly constituencies are territorially divided
and hence territorial link is provided for the voter, but importantly not for
the candidates. 198-DI
Pampakavi Rayappa Belagal/ v. B.D. Jatti & Ors., 1197112 SCR 611, B
relied on.
4
7.5. The arrangement prior to the impugned amendment, to determine
the question as to whether a particular person is ordinarily resident of a
particular place or not, had not worked satisfactorily. The law does not give a c
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.1111-G-H; 112-Al
D
7.6. The Parliament in its wisdom has chosen to do away with the
domiciliary requirement as qualification for contesting an election to fill a
seat as representative of a particular State in the Council of States, fault cannot
be found with such decision of the Parliament on the ground that difficulty to
define what was meant by the expression "ordinarily resident" was not an E
honest ground. There was nothing in the Constitution or the law at any point
of time rendering the domiciliary requirement as crucial qualification for
purposes particularly of the Council of States. While the impugned amendment
cannot be assailed on these reasons, doing away with the domiciliary
requirement cannot always be the answer since it would remain an obligation
of the Legislature and the Central Government to define precisely as to what F
is meant by the expression "ordinarily resident" because that would remain
sine qua non for registration of a person as an elector in a particular
Constituency and thus a subject from which one cannot shy away. It is hoped
for purposes of its proper application under the relevant provisions of the law
concerning elections that the Parliament and the Central Government would G
take necessary steps to unambiguously define the said expression.
(112-C-D-El
7.7. Parity in the matter of qualification to the extent concerning
~>.
residence of a person seeking to be elected as member of either House does
~
not make one House duplicate of the other. Their role, functions, powers or H
16
SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R.
A prerogatives, especially in the matter of legislation, remain unchanged.
[83-A)
8.