Representation of People Act, 1950; Ss.13, 14, 15, 17, 18, 19 & 20/Representation of People Act, 1951; Ss. 3, 59, 94 and 128 with Amendment Act 40 of 2003/Constitution of India, 1950; Articles 19, 55, 66, 80, 249, 251, 324, 327, 368 and 379; Entry 72 of the Union List and Tenth Schedule to the Constitution/Government of India Acts, 1915, 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:

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 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, the elected member remain representatives of the State and the choice and the decision as to elect the representative would remain with the State Assemblies - It does not affect the role, future 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 enlarged - It 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.

Amendment in R.P. Act, 1951 - Principle of Federalism - Effect of amendment - Held: Federal Principle dominant in the Constitution and is one of its basic features but it is not territory related - It is not the requirement  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 State - Hence, deletion of the requirement of residential qualification by the Parliament would not amount to violation of the basic features of federalism - Though the provision of residence/domicile existed in the 1951 Act, a Statutory 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 provisions 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 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 of express requirement of residence as a qualification, it cannot be read into Articles 80 and 84 of the Constitution.

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: 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 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 affect on right to vote of the members as the Constitution itself has provided for election by secret ballot only where it thought fit to do so - However, it 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 free and fair election, but the Parliament is not bound by such advice in terms of provisions under Article 327 of the Constitution.

Open ballot system in preference to secret ballot system - Disqualification 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 part of the Constitution is meant for different purposes.

Amendment - Introduction of Open Ballot System in lieu of 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 authorised 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 show it to the authorized agent, though liable to be cancelled in the event voter chose not to show it to the agent - Moreover, 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 system can be introduced as it is merely a regulatory method to stern out 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 and fair elections.

Right to vote - Open ballot system - Imposing of reasonable restriction in terms of Article 19(2) of the Constitution - Held: Open ballot system is in the interest of maintaining and protecting discipline in the political parties - It also prevents cross voting - Hence, it amounts to imposing of reasonable 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 fully 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.

Doctrines:

Doctrine of contemporanea expositio - Applicability of - Held: Not applicable as irrelevant in the facts and circumstances of the case.

Words and Phrases:

'Candidate' and 'the States' - Nexus between in the context of election to the Council of States - Discussed.

'Each' - Meaning of in the context of Article 80 of the Constitution.

'Ordinarily Resident' - Meaning and nature of in the context of Constitutional provisions.

'Ordinary 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/representative must also be 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, 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 Ballot 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 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 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 and 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 from the reasons given in the Statement of Objects and Reasons for the Bill; 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; that India has adopted parliamentary system of democracy in which the Union Legislature is a bicameral legislature, that such legislature represents the will of the people of the State whose cause has to be represented by the 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 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 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 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 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 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, 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 required to be under Article 80 of the Constitution; that 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; 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 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 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 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 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; 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 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; 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 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 Council of States by the legislative assembly of the State involves 'voting', the principles of Tenth Schedule are attracted; that the application of the Tenth Schedule itself shows that open ballot system tends to frustrate the entire election process, as also its sanctity 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 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 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 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.

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 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 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 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 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 Rajya Sabha and Legislative Council elections", the proposal for the elections "by open ballot" 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 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 Constitutional provisions in the Tenth Schedule; and 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.

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 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 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 structure of the Constitution, having due regard to its federal character and the foundational feature of democracy.