Equivalent Citation - AIR 2006 SC 3127 Writ Petition: Appeal (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
By the Amendment of Representative of People Act 20th03, the requirement of “domicile” in the State Concerned for getting elected to the Council of States was deleted. There were also amendments in Sections 59, 94 and 128 of the Representative of People Act, 1951 by which Open Ballet System was introduced. The petitioner challenged these amendments by writ petition under Article 32 of the Constitution of India.
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.The requirement of “domicile” in the State Concerned for getting elected to the Council of States which was deleted in section 3 of RP act, which, according to the petitioner is violative of the principle of Federalism which is a component of the “basic structure” of the Constitution of India.Also the Open Ballot System 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.
- Whether by the amendment of Representative of people Act 2003, in which the requirement of “domicile” in the State Concerned for getting elected to the Council of States is deleted violates the principle of Federalism, a basic structure of the Constitution?
- Whether the Open Ballet System violates the principle of “secrecy” which is the subject matter of the fundamental right under Article 19(1)(a) of the Constitution?
Shri Sachar, learned senior counsel for the petitioner, contended that the impugnedamendment 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. It was also contended 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.
The impugned amendment and introduction of open ballot system 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 basic structure doctrine is an Indian judicial principle that there are certain basic features of the Constitution of India that cannot be altered or destroyed through amendments by the parliament.The basic structure doctrine applies only to constitutional amendments. The petitioner challenged that the amendments violate the Basic Structure of the constitution.
But it was submitted on behalf of Union of India that basic structure doctrine is inapplicable to Statutes.The respondent contended that residence was never the constitutional requirement. It was never treated as an essential ingredient of the structure of the Council of States. The legislative history of constitutional enactments like the GI Act shows that residence or domicile is not the essential ingredients of the structure and the composition of the Upper House.
The Court also held that it is no part of federal principle that representatives of state must belong to that state. Hence, if Indian Parliament in its wisdom had chosen not to require residential qualification, it would definitely not violate basic feature of federalism. Court very technically held that, residence is not a constitutional requirement of Article 80(4), it is a matter of qualification coming under Article 84. Parliament is competent to prescribe qualification from time to time depending upon fact of the situation. Question of violation of basic structure did not arise. Court also held that the representative character is to be read only after the person is being elected to the council of stated, and not before that.
Further, an ordinary legislation cannot be challenged on ground of violation of basic structure of Constitution. Right to be elected is pure and simple a statutory right that can be created and taken away by parliament and must always be subject to statutory limitation.
Regarding the second question, the court held that in case of list system proportional representation, members are elected on party lines. To give effect to concept of proportional representation, Parliament can suggest “open ballot”. In such a case, it could not be said that “free and fair elections” would stand defeated by “open ballot”. Further, prerogative remained with the voter to choose as to whether or not to show his vote to authorized agent of his party and also nowhere in law it is mentioned that “secret ballot” is the only system.
Rejecting all the grounds, a unanimous 5 judge bench found no infraction of any constitutional provision or principle.Admitting that India is a federal state of its kind, the court held that ‘It is no part of federal principle that the representatives of state must belong to that state’. The word ‘representative of each state’ only refers to the members and do not import any further concept or requirement of residence in the state. Similarly, the court found no violation of any constitutional provision or principle in the amended Section 59 of RP Act insofar as it required election to Rajya Sabha by open ballot. The court held that secrecy of ballot, was not essential feature of democracy which is a basic feature of our constitution.
Owing to the above discussed amendment, it can be concluded that the individuals will have to be watchful as they have everything to lose. This is because they can only watch as the principles of rightful representation shall be amended to accommodate a rather retrograde amendment due to which the States may not be able to voice their issues effectively. This change has very wide repercussions. We can see this from the fact that the ideal of federalism which is a basic feature of the constitution, can be violated in such a scenario. So, the new amendment regarding domicile in Rajya Sabha is indeed a great threat to the principle of federalism which is one of the basic features of the Constitution of India.