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CASE NO.: Writ Petition (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   

JUDGMENT: JUDGMENT

[With Writ Petition (C) Nos.262, 266 and 305 of 2004)

DELIVERED BY: Y.K.SABHARWAL, CJI

Y.K. Sabharwal, CJI

Background         By this writ petition under Article 32 of the Constitution  of India, petitioner seeks to challenge amendments made in  the Representation of People Act, 1951 (for short, ‘the RP Act’,  1951’) through Representation of People (Amendment) Act 40  of 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  is deleted which according to the petitioner violates the  principle of Federalism, a basic structure of the Constitution.           In the writ petition, there is 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,  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. Text of the Statute before the Amending Act 40 of 2003          From 1951 upto 2003, Sections 3, 59, 94 and 128 as  originally stood were as follows: "3. Qualification for membership of  the Council of States. \027 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. \027  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. \027 No witness or other persons  shall be required to state for whom he  has voted at an election. 128. Maintenance of secrecy of  voting.\027 (1) Every officer, clerk, agent or

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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, (Act  No.40 of 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."

Issues         Two issues arise for determination in this case.  The first  issue relates 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.  Broad framework of the Constitution         The Constitution of India provides for the Union  Legislature, called "Parliament", through Article 79, to consist  of the President and two Houses to be known respectively as  the "Council of States", also known as the Rajya Sabha and  the "House of the People", also known as the Lok Sabha.   There is a similar provision in Article 168 for the State  Legislature, which, besides the Governor of the State, includes  a "Legislative Assembly’, also known as the Vidhan Sabha in  each State and "Legislative Council", also known as the  Vidhan Parishad, in some of the States.         In the Union Legislature, i.e., the Parliament, the Council  of States, 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 80(5) further

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provides that representatives of the Union Territories in the  Council of States shall be chosen in such manner as  Parliament may by law prescribe.         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".         Part XV of the Constitution pertains to the subject matter  of "Elections".  It includes, presently, Articles 324 to 329.  The  superintendence, direction and control of elections vests in the  Election Commission.           Article 327 confers, on the Parliament, the power, subject  to the provisions of the Constitution, to make, from time to  time by law, provisions with respect to "all matters relating to,  or in connection with, elections", inter alia, "to either House of  Parliament", including "the preparation of electoral rolls, the  delimitation of the constituencies and all matters necessary for  securing the due consideration of such House or Houses".         Part XI of the Constitution pertains to the "Relations  between the Union and the States".  Chapter I of Part XI is in  respect of "Legislative Relations". Article 245 generally states  that the Parliament, subject to the provisions of the  Constitution, may make laws for the whole or any part of the  territory of India.  Article 246 vests in the Parliament "the  exclusive power" to make laws with respect to any of the  matters enumerated in List I in the Seventh Schedule ("Union  List", hereafter).  The Union List, as given in the Seventh  Schedule includes Entry No.72, which relates to, amongst  others, the "Elections to Parliament".

       History of RP Acts, 1950 and 1951         In the year 1952, the Parliament came to be duly  constituted and summoned to meet for the first session under  the provisions of the Constitution.  Till then, the Constituent  Assembly, which had prepared and adopted the Constitution,  functioned as the Provisional Parliament, in accordance with  the provision contained in Article 379. It may be added here  that after the first General Elections had led to the two Houses  of Parliament being constituted, Article 379, having served its  purpose, was deleted by Constitution (Seventh Amendment)  Act, 1956 with effect from 1st November, 1956.            The Provisional Parliament, in exercise of its authority  under Article 379 read with aforementioned enabling  provisions, enacted a law called the "Representation of the  People Act, 1950" (the RP Act, 1950), which came into force  with effect from 12th May, 1950. This law had been enacted to  provide for "the allocation of seats in and the delimitation of  constituencies for the purpose of election to, the House of the  People and the Legislatures of States, the qualifications of  voter at such elections, the preparation of electoral rolls, and  matters connected therewith". It must be mentioned here that  the subject matter relating to "the manner of filling seats in  the Council of States to be filled by the representatives of Part- C States (later "Union Territories") was inserted in this law by  way of Act 73 of 1950 (to be read with the Adaptation of Laws  (No. 2) Order, 1956) which, among others, added Part IVA to  the RP Act, 1950.         The RP Act, 1950 did not contain all the provisions  relating to elections.  Provisions for the actual conduct of

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elections, amongst others, to the Houses of Parliament, the  qualifications for the membership of such Houses etc. had  been left to be made in subsequent measures.  In order to  make provisions for such other subjects, the Provisional  Parliament, in exercise of its authority under Article 379 read  with aforementioned enabling provisions, enacted the RP Act,  1951, which was brought into force with effect from 17th July,  1951.         Chapter I of Part II of the RP Act, 1951 related to  "Qualifications for membership of Parliament".  It includes two  sections, namely Sections 3 and 4.  We are not much  concerned with Section 4 inasmuch as it pertains to  qualifications for membership of the House of the People.  Section 3 of the RP Act, 1951, in its original form is the main  bone of contention here.         Section 3 of the RP Act, 1951, as originally enacted, read  as under: "3. Qualification for membership of  the Council of States. -   (1) A person  shall not be qualified to be chosen as a  representative of any Part A or Part B  State (other than the State of Jammu and  Kashmir) in the Council of States unless  he is an elector for a Parliamentary  constituency in that State.

(2) A person shall not be qualified to be  chosen as a representative of the States  of Ajmer and Coorg or of the States of  Manipur and Tripura in the Council of  States unless he is an elector for any  Parliamentary constituency in the State  in which the election of such  representative is to be held.

(3) Save as otherwise provided in sub- section (2), a person shall not be qualified  to be chosen as a representative of any  Part C State or group of such States in  the Council of States unless he is an  elector for a Parliamentary constituency  in that State or in any of the States in  that group, as the case may be."  

       Section 3 of the RP Act, 1951, was substituted by the  following provision through the Adaptation of Laws (No. 2)  Order, 1956 and thus came to read as under: "3. Qualification for membership of  the Council of States. -   A person shall  not be qualified to be chosen as a  representative of any State other than the  State of Jammu and Kashmir or Union  territory in the Council of States unless  he is an elector for a Parliamentary  constituency in that State or territory."

       The above provision underwent a further change, with  effect from 14th December, 1966, as a result of Act 47 of 1966,  which made it applicable to all the States and Union  Territories of India by omitting the words "other than the State  of Jammu & Kashmir".         Act 40 of 2003 has amended the provision, with effect  from 28th August, 2003, so as to substitute the words "in that

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State or territory" with the words "in India". The amended  provision reads as under: "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 India."

Issue No. I : Deletion of ’domicile’         The question which needs resolution is : what is meant  by the word "elector".  For this, one will have to refer to certain  other provisions of the RP Act, 1950 and RP Act, 1951.          The effect of the amendment to Section 3 of RP Act, 1951,  brought about by Act 40 of 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.           The word "elector" has been defined in Section 2(e) of the  RP Act, 1951 which reads as under: " ’elector’ in relation to a constituency  means a person whose name is entered in  the electoral roll of that constituency for  the time being in force and who is not  subject to any of the disqualifications  mentioned in section 16 of the  Representation of the People Act, 1950  (43 of 1950)."

       Section 16 of the RP Act, 1950, which has been referred  to in the above-quoted definition of the word "elector" reads as  under: "16. Disqualifications for registration  in an electoral roll. \026 (1) A person shall  be disqualified for registration in an  electoral roll if he \026 is not a citizen of India; or is of unsound mind and stands so  declared by a competent court; or is for the time being disqualified from  voting under the provisions of any  law relating to corrupt practices and  other offences in connection with  elections.

(2) The name of any person who becomes  so disqualified after registration shall  forthwith be struck off the electoral roll in  which it is included:

     Provided that the name of any person  struck off the electoral roll of a  constituency by reason of a  disqualification under clause (c) of sub- section (1) shall forthwith be reinstated in  that roll if such disqualification is, during  the period such roll is in force, removed  under any law authorizing such removal."

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       Section 19 of the RP Act, 1950 relates to the "conditions  of registration".  It provides as under:

"19. Conditions of registration. \026  Subject to the foregoing provisions of this  Part, every person who-

is not less than [eighteen years] of age on  the qualifying date, and is ordinarily resident in a constituency,

shall be entitled to be registered in the electoral roll  for that constituency."

       The expression "ordinarily resident" as appearing in   Section 19(b) has been explained in Section 20 of the RP Act,   1950, which may also be extracted, inasmuch as it is of great   import in these matters.  It reads as under:    "20. Meaning of ’ordinarily resident’. \026   (1) A person shall not be deemed to be   ordinarily resident in a constituency on   the ground only that he owns; or is in   possession of, a dwelling house therein.    (1A) A person absenting himself   temporarily from his place of ordinary   residence shall not by reason thereof   cease to be ordinarily resident therein.    (1B) A member of Parliament or of the   Legislature of a State shall not during the   term of his office cease to be ordinarily   resident in the constituency in the   electoral roll of which he is registered as   an elector at the time of his election as   such member, by reason of his absence   from that constituency in connection with   his duties as such member.    (2) A person who is a patient in any   establishment maintained wholly or   mainly for the reception and treatment of   persons suffering from mental illness or   mental defectiveness, or who is detained   in prison or other legal custody at any   place, shall not by reason thereof be   deemed to be ordinarily resident therein.    (3) Any person having a service   qualification shall be deemed to be   ordinarily resident on any date in the   constituency in which, but for his having   such service qualification, he would have   been ordinarily resident on that date.    (4) Any person holding any office in India   declared by the President in consultation   with the Election Commission to be an   office to which the provisions of this sub-  section apply, shall be deemed to be   ordinarily resident on any date in the   constituency in which, but for the holding   of any such office, he would have been

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ordinarily resident on that date.    (5) The statement of any such person as   is referred to in sub-section (3) or sub-  section (4) made in the prescribed form   and verified in the prescribed manner,   that [but for his having the service   qualification] or but for his holding any   such office as is referred to in sub-section   (4) he would have been ordinarily resident   in a specified place on any date, shall, in   the absence of evidence to the contrary,   be accepted as correct.    (6) The wife of any such person as is   referred to in sub-section (3) or sub-  section (4) shall if she be ordinarily   residing with such person be deemed to   be ordinarily resident on in the   constituency specified by such person   under sub-section (5).    (7) If in any case a question arises as to   where a person is ordinarily resident at   any relevant time, the question shall be   determined with reference to all the facts   of the case and to such rules as may be   made in this behalf by the Central   Government in consultation with the   Election Commission.    (8) In sub-sections (3) and (5) "service   qualification" means-    being a member of the armed forces of   the Union; or  being a member of a force to which the   provisions of the Army Act, 1950 (46 of   1950), have been made applicable   whether with or without modifications;   or  being a member of an armed police   force of a State, who is serving outside   that State; or  being a person who is employed under   the  Government of India, in a post   outside India.           All the above provisions of law have to be read together   and the conjoint effect thereof is that a person in order to   qualify to be registered as an elector in relation to a   constituency, besides fulfilling other qualifications, must be a   citizen of India, not less than 18 years of age on the qualifying   date (which by virtue of Section 14 of RP Act, 1950, means the   first day of January of the year in which the electoral list of the   constituency is prepared or revised), and, what is significant   here, be "ordinarily resident" in that constituency.         As a result of the impugned amendment to Section 3 of   the RP Act, 1951, it is no longer required that the candidate   for an election to fill a seat in the Council of States be   "ordinary resident" of the State to which that seat pertains.         The above amendment, which can be loosely described as   an amendment doing away with the requirement of domicile,   has been challenged as unconstitutional in the writ petitions   at hand.

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Submissions on domicile requirements         Shri Sachar, learned senior 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; 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.  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.         Learned counsel further submits 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 members.  It is urged that the   impugned amendments removes the distinction in the intent   and purpose of Lok Sabha and Rajya Sabha and that the mere   fact that there exists 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.  Reliance is also placed in this   connection on Rajya Sabha Rules to show the importance of   residence as qualification of a representative of the State.  It is   further contended that the requirement of domicile makes the   upper House an ’alter ego’ of the lower House.         Mr. Nariman, appearing on behalf of the petitioner Shri   Indrajeet, while supplementing the arguments above-  mentioned, contended that the Constitution and the RP 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 and that the said scheme is   provided for in Article 80 and Article 84 of the Constitution as   also in Sections 17, 18 and 19 of the RP Act, 1950 and in   Section 3 of the RP Act, 1951, which scheme guarantees the   representative character of the Council.  It is urged that by   deletion of the word ’domicile’ or ’residence’ or by not reading   the word ’domicile’ or ’residence’ in Article 80(4), the basic   requirement of the representative federal body stands   destroyed.         Shri Vahanvati, Ld. Solicitor General of India, on the   question of domicile submitted that the impugned   amendments became necessary in view of various deficiencies   experienced in the working of the RP Act, 1951; that the said   amendments did not alter or distort the character of the   Council of States and that the concept of residence/domicile is   a matter of qualification under Article 84(c) which is to be   prescribed by the Parliament under the Indian Constitution   unlike the US Constitution.  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

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word "States" appearing in clause (4) of Article 80 does not   comprise the requirement of residence.  Constitutional & Legislative History  (i)    Rule of interpretation         Before coming to the legislative history, we may state that   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.         The key question is whether residence was ever treated   as a constitutional requirement under Article 80(4).   In re: Special Reference No. 1 of 2002 [(2002) 8 SCC   237], it was observed that:  "One of the known methods to discern   the intention behind enacting a provision   of the Constitution and also to interpret   the same is to look into the historical   legislative developments, Constituent   Assembly Debates, or any enactment   preceding the enactment of the   Constitutional provisions."    (ii)   Legislative History         The Constitution has established a federal system of   Government with bi-cameral 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.  The Lower Chamber was called   ’House of Assembly’.  The Upper Chamber was called ’Council   of States’.  Under the Government of India Act, 1935 (for short,   the ’GI Act’), the Council of States was a permanent body with   one-third of its members retiring every third year.  Sixth   Schedule to the GI Act made provisions for franchise.  Part I of   that Schedule contained qualifications.  It did not include   residence as a qualification of the elector.  However, there were   other parts to the Sixth Schedule which dealt with certain   subjects exclusive for different provinces in which there was a   requirement of residence.  This was under the heading ’general   requirements.  However, there was no uniformity.  In certain   cases, residence was prescribed as a qualification (for example   in the case of Central Provinces, Berar and Bengal) whereas in   provinces, namely, Assam, the qualification was ’a family   dwelling place or a place where the elector ordinarily resided’.    Therefore, the qualification of residence was not uniform.  It   depended upon local conditions.  It deferred from province to   province.         At this stage, we may clarify that under strict federalism,   the Lower House represents ’the people’ and the Upper House   consists of the ’Union’ of the Federation.  In strict federalism   both the Chambers had equal legislative and financial powers.    However, in the Indian context, strict federalism was not   adopted.         The Council of State under the GI Act became Council of   States under the Constitution of India.  This fact is important.    In this connection, we have to look into the minutes of the   Union Constitution Committee which recorded vide Item 21   the manner of computing weight proportional representation   based on population strength.  The said minutes further show   the recommendation that the Upper House should include

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scientists, teachers etc. for which purpose, the President   should be given authority to nominate.  The necessity of the   Upper Chamber was also the subject matter of debate in the   Constituent Assembly on 28th July, 1947.  These debates   indicate the purpose for having the Upper Chamber.  The   object of the Upper Chamber as envisaged was to hold   dignified debates on important issues and to share the   experience of seasoned persons who were expected to   participate in the debate with an amount of learning.         Finally, on 28th July, 1947, a policy decision was taken   by the Constituent Assembly that the Federal Parliament shall   consist of two chambers.         In the first draft Constitution, Fourth Schedule related to   the composition of the Federal Parliament.  Paragraph 1 of   Part I of the Fourth Schedule dealt with the general   qualifications for the members which included citizenship and   minimum age of not less than 35 years in the case of a seat in   the Council of States.  The said paragraph further stated that   apart from citizenship and age qualifications, it would be open   to the Parliament to describe any other qualification as may be   appropriate.  Paragraph 6 of Part I of the Fourth Schedule   appended to the first draft Constitution provided for the   qualification of residence in a State for a candidate to be   chosen to the Council of States.  Clause 60 of the first draft   Constitution stated 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. (Emphasis   supplied).  However, the Fourth Schedule was omitted by the   Drafting Committee.  This was on 11th February, 1948.    Therefore, with this deletion, the requirement of residence was   done away with.         The entire discussion with regard to the legislative   history is only to show that 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.  Further, the   legislative history shows that qualification of residence has   never been a constant factor.  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.  Therefore,   the legislative history of constitutional enactments like the GI   Act shows that residence or domicile are not the essential   ingredients of the structure and the composition of the Upper   House.  At this stage, one event needs to be highlighted.  The   Drafting Committee included a separate chapter under Part   XIII on the subject of ’elections’ to the draft Constitution which   corresponded to Article 327 in Part XV of the Constitution.    Article 290 empowered the Parliament to make laws providing   for all matters relating to or in connection with elections to the   House of Parliament.  Ultimately, despite all objections against   bicameral legislature, the Constituent Assembly took the   decision to have Federal Parliament consisting of two   chambers.  In its report, the Drafting Committee   recommended basic qualifications for membership of   Parliament being a subject which should be left to the wisdom   of the Parliament.  Accordingly, the Drafting Committee   recommended Article 68A which corresponds to Article 84 in   the Constitution.  This was the first time when a provision was   included to prescribe qualifications which included citizenship   and the minimum age subject to any other qualification that   may be prescribed by law made by the Parliament.  The

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Drafting Committee justified the inclusion of Article 68A in the   following words :  "Article 152 prescribes an age   qualification for members of State   Legislatures. There is no corresponding   provision for members of Parliament.   There is, moreover, a strong feeling in   certain quarters that a provision   prescribing or permitting the prescription   of educational and other qualifications for   membership both of Parliament and of   the State Legislatures should be included   in the Draft. If any standard of   qualifications is to be laid down for   candidates for membership it must be so   precise that an election tribunal will be   able to say, in a given case, whether the   candidate satisfied it or not.  To   formulate precise and adequate   standards of this kind will require time.    Further, if any such qualifications are   laid down in the Constitution itself, it   would be difficult to alter them if   circumstances so require.  The best   course would, therefore, be to insert an   enabling provision in the Constitution   and leave it to the appropriate legislature   to define the necessary standards later.    Whatever qualifications may be   prescribed, one of them would certainly   have to be the citizenship of India."           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.  Composition of Parliament         India’s Parliament is bicameral.  The two Houses along   with the President constitute Parliament [Article 79].  The   Houses differ from each other in many respects.  They are   constituted on different principles, and, from a functional   point of view, they do not enjoy a co-equal status.  Lok Sabha   is a democratic chamber elected directly by the people on the   basis of adult suffrage.  It reflects popular will.  It has the last   word in matters of taxation and expenditure.  The Council of   Ministers is responsible to the Lok Sabha.         Rajya Sabha, on the other hand, is constituted by   indirect elections.  The Council of Ministers is not responsible   to the Rajya Sabha.  Therefore, the role of Rajya Sabha is   somewhat secondary to that of Lok Sabha, barring a few   powers in the arena of Centre-State relationship.         Rajya Sabha is a forum to which experienced public   figures get access without going through the din and bustle of   a general election which is inevitable in the case of Lok Sabha.    It acts as a revising chamber over the Lok Sabha.  The   existence of two debating chambers means that all proposals   and programmes of the Government are discussed twice.  As a   revising chamber, the Rajya Sabha helps in improving Bills

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passed by the Lok Sabha.  Although the Rajya Sabha is   designed to serve as a Chamber where the States and the   Union of India are represented, in practice, the Rajya Sabha   does not act as a champion of local interests.  Even though   elected by the State Legislatures, the members of the Rajya   Sabha vote not at the dictate of the State concerned, but   according to their own views and party affiliation.  In fact, at   one point of time in 1973, a private member’s resolution was   to the effect that the Rajya Sabha be abolished.  Composition of Rajya Sabha         The maximum strength of Rajya Sabha is fixed at 250   members, 238 of whom are elected representatives of the   States and the Union Territories and 12 are nominated by the   President.  The seats in the Upper House are allotted among   the various States and Union Territories on the basis of   population, the formula being one seat for each million of   population for the first five million and thereafter one seat for   every two million population.  A slight advantage is, therefore,   given to States with small population over the States with   bigger population.  This is called "weighted proportional   representation".  The system of proportional representation   helps in giving due representation to minority groups.  The   representatives of a State in 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 [Article 80(1)(b) and Article   80(4)].  Rajya Sabha is a continuing body.  It has nominated   members.  They are nominated by the President on the advice   of Council of Ministers.  There is no difference in status   between elected and nominated members of Rajya Sabha   except that the elected members can participate in the election   of the President whereas the nominated members cannot do   so.  One-third of its members retire every two years and their   seats are filled by fresh elections and nominations.  Rajya Sabha’s power under Article 249 of the Constitution         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.  Hence, the Rajya   Sabha was vested with a contingency based power over state   legislatures under Article 249, which contributes to the   ’Quasi-federal’ nature to the government of the Indian union.    Under Article 249(1), if the Rajya Sabha declares by a   resolution, supported by not less than two-thirds of it’s   members present and voting, that it is necessary or expedient   in national interest that Parliament should make laws with   respect to any of the matters enumerated in the State list [List   II of Seventh Schedule read with Article 246], specified in the   resolution, it shall be lawful for parliament to make laws for   the whole or any part of the territory of India with respect to   that matter while the resolution remains in force.  Article 249   clause (2) and (3) specify the limitations on the enforcement of   this provision.  Article 251 when read with Article 249   provides that in case of inconsistency between a law made by   parliament under Article 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 Rajya 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   functioning of a State government, which is most often   prompted by the existence of opposing party-affiliations at the   Central and state level.  This bias towards ’Unitary power’

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under normal circumstances is not seen either in U.S.A. or   Canada.   Federalism         A lot of energy has been devoted on behalf of the   petitioners to build up a case that the Constitution of India is   federal. The nature of Federalism in Indian Constitution is no   longer res integra.          There can be no quarrel with the proposition that Indian   model is broadly based on federal form of governance.   Answering the criticism of the tilt towards the Centre, Shri T.T.   Krishnamachari, during debates in the Constituent Assembly   on the Draft Constitution, had stated as follows:  "Sir, I would like to go into a few   fundamental objections because as I said   it would not be right for us to leave these   criticism uncontroverted.  Let me take up   a matter which is perhaps partly   theoretical but one which has a validity   so far as the average man in this country   is concerned.  Are we framing a unitary   Constitution?  Is this Constitution   centralizing power in Delhi?  Is there any   way provided by means of which the   position of people in various areas could   be safeguarded, their voices heard in   regard to matters of their local   administration?   I think it is a very big   charge to make that this Constitution is   not a federal Constitution, and that it is a   unitary one.  We should not forget that   this question that the Indian Constitution   should be a federal one has been settled   by our Leader who is no more with us, in   the Round Table Conference in London   eighteen years back."   "I would ask my honourable friend to   apply a very simple test so far as this   Constitution is concerned to find out   whether it is federal or not.  The simple   question I have got from the German   school of political philosophy is that the   first criterion is that the State must   exercise compulsive power in the   enforcement of a given political order, the   second is that these powers must be   regularly exercised over all the   inhabitants of a given territory; and the   third is the most important and that is   that the activity of the State must not be   completely circumscribed by orders   handed down for execution by the   superior unit. The important words are   ’must not be completely circumscribed’,   which envisages some powers of the State   are bound to be circumscribed by the   exercise of federal authority. Having all   these factors in view, I will urge that our   Constitution is a federal Constitution. I   urge that our Constitution is one in   which we have given power to the Units   which are both substantial and   significant in the legislative sphere and in   the executive sphere."   (emphasis supplied)         In this context, Dr. B.R.  Ambedkar, speaking in the

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Constituent Assembly had explained the position in the  following words: "There is only one point of Constitutional  import to which I propose to make a  reference.  A serious complaint is made  on the ground that there is too much of  centralization and that the States have  been reduced to Municipalities. It is clear  that this view is not only an exaggeration,  but is also founded on a  misunderstanding of what exactly the  Constitution contrives to do. As to the  relation between the Centre and the  States, it is necessary to bear in mind the  fundamental principle on which it rests.  The basic principle of Federalism is that  the legislative and executive authority is  partitioned between the Centre and the  States not by any law to be made by the  Centre but the Constitution itself. This is  what the Constitution does. The States,  under our Constitution, are in no way  dependent upon the Centre for their  legislative or executive authority. The  Centre and the States are co-equal in this  matter. It is difficult to see how such a  Constitution can be called centralism. It  may be that the Constitution assigns to  the Centre too large a field for the  operation of its legislative and executive  authority than is to be found in any other  Federal Constitution. It may be that the  residuary powers are given to the Centre  and not to the States. But these features  do not form the essence of federalism.  The chief mark of federalism, as I said  lies in the partition of the legislative and  executive authority between the Centre  and the Units by the Constitution. This is  the principle embodied in our  Constitution."          (emphasis supplied)

       The Constitution incorporates the concept of federalism  in various provisions. The provisions which establish the  essence of federalism i.e. having States and a Centre, with a  division of functions between them with sanction of the  Constitution include, among others, Lists II and III of Seventh  Schedule that give plenary powers to the State Legislatures;  the authority to Parliament to legislate in a field covered by the  State under Article 252 only with the consent of two or more  States, with provision for adoption of such legislation by any  other State; competence of Parliament to legislate in matters  pertaining to the State List, only for a limited period, under  Article 249 "in the national interest" and under Article 250  during "emergency"; vesting the President with the power  under Article 258(1) to entrust a State Government, with  consent of the Governor, functions in relation to matters to  which executive power of the Union extends, notwithstanding  anything contained in the Constitution; decentralization of  power by formation of independent municipalities and  Panchayats through 73rd and 74th Amendment; etc.         In re: Under Article 143, Constitution of India,  (Special Reference No. 1 of 1964) [AIR 1965 SC 745  (Paragraph 39 at 762)], this Court ruled thus:

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"In dealing with this question, it is  necessary to bear in mind one  fundamental feature of a Federal  Constitution. In England, Parliament is  sovereign; and in the words of Dicey, the  three distinguishing features of the  principle of Parliamentary Sovereignty are  that Parliament has the right to make or  unmake any law whatever; that no  person or body is recognised by the law of  England as having a right to over-ride or  set aside the legislation of Parliament,  and that the right or power of Parliament  extends to every part of the Queen’s  dominions (1). On the other hand, the  essential characteristic of federalism is  "the distribution of limited executive,  legislative and judicial authority among  bodies which are coordinate with and  independent of each other". The  supremacy of the constitution is  fundamental to the existence of a federal  State in order to prevent either the  legislature of the federal unit or those of  the member States from destroying or  impairing that delicate balance of power  which satisfies the particular  requirements of States which are  desirous of union, but not prepared to  merge their individuality in a unity. This  supremacy of the constitution is  protected by the authority of an  independent judicial body to act as the  interpreter of a scheme of distribution of  powers. Nor is any change possible in the  Constitution by the ordinary process of  federal or State legislation (2). Thus the  dominant characteristic of the British  Constitution cannot be claimed by a  Federal Constitution like ours."

       In the case of State of Karnataka v. Union of India &  Anr. [1978 (2) SCR 1], Justice Untwalia (speaking for Justice  Singhal, Justice Jaswant Singh and for himself), observed as  follows: "Strictly speaking, our Constitution is not  of a federal character where separate,  independent and sovereign State could be  said to have joined to form a nation as in  the United States of America or as may  be the position in some other countries of  the world.  It is because of that reason  that sometimes it has been characterized  as quasi-federal in nature".  

       In S. R. Bommai & Ors. v. Union of India & Ors. [AIR  1994 SC 1918 : 1994 (3) SCC 1], a Constitution Bench  comprising 9 Judges of this Court considered the nature of  federalism under the Constitution of India. Justice A.M.  Ahmadi, in Paragraph 23 of his Judgment observed as under: "\005\005\005 the significant absence of the  expressions like ’federal’ or ’federation’ in  the constitutional vocabulary,  Parliament’s powers under Articles 2 and  3 elaborated earlier, the extraordinary

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powers conferred to meet emergency  situations, the residuary powers  conferred by Article 248 read with Entry  97 in List I of the VII Schedule on the  Union, the power to amend the  Constitution, the power to issue  directions to States, the concept of a  single citizenship, the set up of an  integrated judiciary, etc., etc., have led  constitutional experts to doubt the  appropriateness of the appellation  ’federal’ to the Indian Constitution. Said  Prof. K. C. Wheare in his work ’Federal  Government: ’What makes one doubt that  the Constitution of India is  strictly and fully federal,  however, are the powers of  intervention in the affairs of  the States given by the  Constitution to the Central  Government and Parliament’." Thus in the United States, the sovereign  States enjoy their own separate existence  which cannot be impaired; indestructible  States having constituted an  indestructible Union. In India, on the  contrary, Parliament can by law form a  new State, alter the size of an existing  State, alter the name of an existing State,  etc. and even curtail the power, both  executive and legislative, by amending  the Constitution. That is why the  Constitution of India is differently  described, more appropriately as ’quasi- federal’ because it is a mixture of the  federal and unitary elements, leaning  more towards the latter but then what is  there in a name, what is important to  bear in mind is the thrust and  implications of the various provisions of  the Constitution bearing on the  controversy in regard to scope and ambit  of the Presidential power under Article  356 and related provisions."  (emphasis supplied)

               Justice K. Ramaswami in Paragraph 247 and 248 of  his separate Judgment in the same case observed as under: - "247. Federalism envisaged in the  Constitution of India is a basic feature in  which the Union of India is permanent  within the territorial limits set in Article 1  of the Constitution and is indestructible.  The State is the creature of the  Constitution and the law made by  Articles 2 to 4 with no territorial integrity,  but a permanent entity with its  boundaries alterable by a law made by  Parliament. Neither the relative  importance of the legislative entries in  Schedule VII, Lists I and II of the  Constitution, nor the fiscal control by the  Union per se are decisive to conclude that  the Constitution is unitary. The

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respective legislative powers are traceable  to Articles 245 to 254 of the Constitution.  The State qua the Constitution is federal  in structure and independent in its  exercise of legislative and executive  power. However, being the creature of the  Constitution the State has no right to  secede or claim sovereignty. Qua the  Union, State is quasi-federal. Both are  coordinating institutions and ought to  exercise their respective powers with  adjustment, understanding and  accommodation to render socio-economic  and political justice to the people, to  preserve and elongate the constitutional  goals including secularism. 248. The preamble of the Constitution is  an integral part of the Constitution.  Democratic form of Government, federal  structure, unity and integrity of the  nation, secularism, socialism, social  justice and judicial review are basic  features of the Constitution."  (emphasis supplied)

       Justice B. P. Jeevan Reddy, writing separate Judgment  (for himself and on behalf of S.C. Agrawal, J.) concluded in  Paragraph 276 thus: "The fact that under the scheme of our  Constitution, greater power is conferred  upon the Centre vis-‘-vis the States does  not mean that States are mere  appendages of the Centre. Within the  sphere allotted to them, States are  supreme. The Centre cannot tamper with  their powers. More particularly, the  Courts should not adopt an approach, an  interpretation, which has the effect of or  tends to have the effect of whittling down  the powers reserved to the States.  \005\005\005\005must put the Court on guard  against any conscious whittling down of  the powers of the States. Let it be said  that the federalism in the Indian  Constitution is not a matter of  administrative convenience, but one of  principle the outcome of our own  historical process and a recognition of the  ground realities. \005\005\005. enough to note  that our Constitution has certainly a bias  towards Centre vis-‘-vis the States  (Automobile Transport (Rajasthan) Ltd. v.  State of Rajasthan, (1963) 1 SCR 491 at  page 540 : (AIR 1962 SC 1406). It is  equally necessary to emphasise that  Courts should be careful not to upset the  delicately crafted constitutional scheme  by a process of interpretation.  (emphasis supplied)

       In paragraph 98, Sawant, J. proceeded to observe as  under: - "In this connection, we may also refer to  what Dr Ambedkar had to say while  answering the debate in the Constituent

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Assembly in the context of the very  Articles 355, 356 and 357. \005\005\005\005. He  has emphasised there that  notwithstanding the fact that there are  many provisions in the Constitution  whereunder the Centre has been given  powers to override the States, our  Constitution is a federal Constitution. It  means that the States are sovereign in  the field which is left to them. They have  a plenary authority to make any law for  the peace, order and good Government of  the State."

       In Paragraph 106, his following observations are  relevant:- "Thus the federal principle, social  pluralism and pluralist democracy which  form the basic structure of our  Constitution demand that the judicial  review of the Proclamation issued under  Article 356(1) is not only an imperative  necessity but is a stringent duty and the  exercise of power under the said  provision is confined strictly for the  purpose and to the circumstances  mentioned therein and for none else."  (emphasis supplied)

       In ITC Ltd. v. Agricultural Produce Market Committee  & Ors. [(2002) 9 SCC 232], this Court ruled thus: - "The Constitution of India deserves to be  interpreted, language permitting, in a  manner that it does not whittle down the  powers of the State Legislature and  preserves the federalism while also  upholding the Central supremacy as  contemplated by some of its articles\005."  (emphasis supplied)

       In State of West Bengal v. Kesoram Industries Ltd. &  Ors. [AIR 2005 SC 1646 : (2004) 10 SCC 201], decided by a  Constitution bench comprising 5 Judges, the majority  judgment in Paragraph 50 observed as under: "Yet another angle which the  Constitutional Courts would advisedly do  better to keep in view while dealing with a  tax legislation, in the light of the  purported conflict between the powers of  the Union and the State to legislate,  which was stated forcefully and which  was logically based on an analytical  examination of constitutional scheme by  Jeevan Reddy, J. in S.R. Bommai and  others v. Union of India [(1994) 3 SCC  1], may be touched. Our Constitution has  a federal structure. Several provisions of  the Constitution unmistakably show that  the Founding Fathers intended to create  a strong centre\005.."  (emphasis supplied)

       True, the federal principle is dominant in our  Constitution and that principle is one of its basic features,  but, it is also equally true that federalism under Indian

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Constitution leans in favour of a strong centre, a feature that  militates against the concept of strong federalism. Some of the  provisions that can be referred to in this context include the  power of the Union to deal with extraordinary situations such  as during the emergency (Article 250, 252, 253) and in the  event of a proclamation being issued under Article 356 that  the governance of a State cannot be carried on in accordance  with the provisions of the Constitution; the power of the  Parliament to legislate with respect to a matter in the State  List in the national interest in case there is a resolution of the  Council of States supported by prescribed majority (Article  249); the power of the Parliament to provide for creation and  regulation of All India Services common to Union and the  States in case there is a Resolution of the Council of States  supported by not less than two-third majority (Article 312);  there is only one citizenship namely the citizenship of India;  and, perhaps most important, the power of the Parliament in  relation to the formation of new States and alteration of areas,  boundaries or names of States (Article 3).         This Court in the case of State of West Bengal v. Union  of India [(1964) 1 SCR 371 at 396], has observed that our  Constitution is not of a true or a traditional pattern of  federation.  In a similar vein are other judgments of the Court,  like State of Rajasthan & Ors. v. Union of India Etc. Etc.  [(1978) 1 SCR 1 at pages 4G and 33F], that speak of the  conspectus of the provisions that whatever appearance of a  federal structure our Constitution may have, judging by the  contents of the power which a number of provisions carry with  them and the use made of them, is in its operation, more  unitary than federal.         The concept of federalism in our Constitution, it has been  held, is vis-‘-vis the legislative power as would be evident by  various Articles of the Constitution.  In fact, it has come into  focus in the context of distribution of legislative powers under  Article 246.  {ITC Ltd. V. Agricultural Produce Market  Committee & Ors. [(2002) 9 SCC 232]}         The Commission on Inter-State Relations (Sarkaria  Commission), in its Report has specifically said that the  Constitution as emerged from the Constituent Assembly in  1949, has important federal features but it cannot be federal  in the classical sense. It was not the result of an agreement to  join the federation, unlike the United States.  There is no dual  citizenship, i.e., of the Union and the States. (Pages 8 and 9 of  the Report of the Commission on Centre-State Relations, Part-I,  and paragraphs 1.3.04, 1.3.05, 1.3.06, 1.3.07].         The arguments of the Writ Petitioners about the status,  position, role and character of the Council of States in the  Constitutional scheme have to be examined in the light of well- settled law, culled out above, as to the nature of Indian  federalism.         In his attempt to argue that there necessarily has to be a  territorial nexus with a State or a Union Territory in a federal  set up, Mr. Rao for the State of Tamil Nadu referred to the use  of the expression "We, the people of India" in the Preamble,  description of India as a "Union of States" in Article 1; territory  of India being comprised of (1) the territories of the States and  (b) the territories of the Union Territories as per Article 1(3);  Article 326 requiring a person to be a citizen of India so as to  be an elector; and the provisions about citizenship of India as  contained in Articles 5, 6, 8 & 9 laying stress on the territory  of India. He also referred to the Collins Paperback English  Dictionary to point out meanings of the expressions "Country"  [a territory distinguished by its people, culture, geography,  etc.; an area of land distinguished by its political autonomy;  state; the people of a territory or state] and "State" [a sovereign

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political power or community; the territory occupied by such a  community; the sphere of power in such a community: affairs  of state; one of a number of areas or communities having their  own governments and forming a federation under a sovereign  government, as in the U.S.].         Mr. Sachar, taking a similar line, submitted 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.  He also  submitted that the central idea to be kept in mind for  appreciating the argument is that it is government "of the  people" and "by the people".         Thus, it is the argument of the petitioners that "Birth"  and "Residence" are the two constituently recognized links  with a State or a Union Territory in terms of the Constitution.   In order to represent a State or a Union Territory in the  Council of States in terms of Article 80, a person should be a  citizen of India having an identifiable nexus with the State or  the Union Territory because the very concept of Council of  States recognizes that in a federal constitutional set up, the  States and Union Territories have their own problems,  interests, concerns and views about many issues and,  therefore, there shall be a forum exclusively to represent the  States and the Union Territories in the national legislature, i.e.  Parliament.  Unless a person belongs to a State or a Union  Territory, in the scheme of the Constitution he will not have  the capacity to represent the State or the Union Territory, as  the case may be.         But then, India is not a federal State in the traditional  sense of the term. There 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 boundaries, but  even to extinguish a State {State of West Bengal v. Union of  India, [(1964) 1 SCR 371]}.  Further, when it comes to  exercising powers, they are weighed heavily in favour of the  Centre, so much so that various descriptions have been used  to describe India such as a pseudo-federation or quasi- federation in an amphibian form, etc.         The Constitution provides for the bicameral legislature at  the centre.  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.           It is no part of Federal principle that the representatives  of the States must belong to that State.  There is no such  principle discernible as an essential attribute of Federalism,  even in the various examples of upper chamber in other  countries.   Other Constitutions \026 Role of Rajya Sabha vis-‘-vis role of  Upper House in the other Constitutions

The growth of ’Bicameralism’ in parliamentary forms of  government has been functionally associated with the need for  effective federal structures.  This nexus between the role of  ’Second Chambers’ or  Upper Houses of Parliament and better  co-ordination between the Central government and those of  the constituent units, was perhaps first laid down in definite

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terms with the Constitution of the United States of America,  which was ratified by the thirteen original states of the Union  in the year 1787.  The Upper House of the Congress of the  U.S.A., known as the Senate, was theoretically modeled on the  House of Lords in the British Parliament, but was totally  different from the latter with respect to its composition and  powers. Since then, many nations have adopted a bicameral form  of central legislature, even though some of them are not  federations.  On account of Colonial rule, these British  institutions of parliamentary governance were also embodied  in the British North America Act, 1867 by which the Dominion  of Canada came into existence and The Constitution of India,  1950.  In Canada, the Parliament consists of the House of  Commons and the Senate (’Upper House’).  Likewise the  Parliament of the Union of India consists of the Lok Sabha  (House of the People) and the Rajya Sabha (Council of States,  which is the Upper House).  In terms of their functions as  agencies of representative democracies, the Lower Houses in  the Legislatures of India, U.S.A and Canada \026 namely the Lok  Sabha, the House of Representatives and the House of  Commons broadly follow the same system of composition.  As  of now, Members of the Lower Houses are elected from pre- designated constituencies through universal adult suffrage.   The demarcation of these constituencies is in accordance with  distribution of population, so as to accord equity in the value  of each vote throughout the territory of the country.  However,  with the existence of constituent states of varying areas and  populations, the representation accorded to these states in the  Lower House becomes highly unequal.  Hence, the  composition of the Upper House has become an indicator of  federalism, so as to more adequately reflect the interests of the  constituent states and ensure a mechanism of checks and  balances against the exercise of power by central authorities  that might affect the interests of the constituent states. However, the area of focus is to analyse the role of second  chambers in the context of centre-state relations i.e.  embodiment of different degrees of federalism.  This motive  also illustrates the choice of the Indian Rajya Sabha, the U.S.  Senate and the Canadian Senate, since these three nations are  notable examples of working federations over large territories  and populations which have a high degree of diversity at the  same time.  The chief criterion of comparison will be the  varying profile of representation accorded to the constituents  units by the methods of composition and the differences in the  powers vested with the ’Upper houses’ in the constitutional  scheme of the countries.  Many Political theorists and  Constitutional experts are of the opinion that in the  contemporary context, ’Second Chambers’ are losing their  intended characteristics of effectively representing the  interests of states and are increasingly becoming ’national’  institutions on account of more economic, social and political  affinity developing between states.  Hence, a comparative  study of the working of bicameralism can assist the  understanding of such dynamics within a Federal system of  governance. As mentioned earlier, the emergence of Second Chamber  in a Federal context was first seen in the Constitution of the  United States.  The thirteen original colonies had been  governed under varying structures until independence from  British Rule and hence the element of states’ identity was  carried into the subsequent Union.  For purposes of the  Federal legislature, there were concerns by the smaller states  that the recognition of constituencies on the basis of  population would accord more representation and power to the

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bigger and more populous states.  Furthermore, in that era,  voting rights were limited to white males and hence the size of  the electorates were relatively larger in the Northern states as  compared to the Southern states which had a comparatively  higher proportion of Negroid population who had no franchise.   Hence, the motives of Federalism and ensuring of more parity  between states of different sizes resulted in a compromise in  the drafting of the constitution.  While the Lower House of  Congress, i.e. the House of representatives was to be  constituted by members elected from Constituencies based on  population distribution, the Senate was based on equal  representation for all states.  Initially, the two senators from  each state were elected by the respective State legislatures but  after the 17th amendment of 1913, Senators have been elected  by open adult suffrage among the whole electorate of a state.   This inherent motive of ensuring a counter-balance to the  power of the federal government and larger states has  persisted in the functioning of the Senate.  This is reflected by  the fact that the U.S. Senate has also been vested with certain  extra-legislative powers, which distinguish it from Second  Chambers in other countries.  Moreover, the Senate is a  continuing body with senators being elected for 6 year terms  and 1/3rd of the members retiring or seeking re-election every  2 years.  With the addition of more states to the Union, the  numerical strength of the U.S. senate has also increased. The Parliament of the Dominion of Canada in its present  from was established by the British North America Act, 1867  (also known as the Constitution Act, 1867).  Canada to this  day remains a constitutional monarchy with a parliamentary  form of government, and a Governor-General appointed by the  British sovereign acts as the nominal head of state.  Prior to  the 1867 Act, the large territories that now constitute Canada  (with the exception of Quebec, which had the historical  influence of French rule) were being administered as distinct  territories.  This act established a confederation among the  constituent provinces.  Hence, the parliament of the Dominion  was in effect the federal legislature comprising of the House of  Commons and the Senate.  The Senate was given two major  functions in the constitution.  First, it was to be the chamber  of  "sober second thought".  Such a limit should prevent the  elected House of Commons from turning Canada into a  "mobocracy", as the framers of Confederation (the 1867 Act)  saw in case of the U.S.A.  The Senate was thus given the  power to overturn many types of legislation introduced by the  Commons and also to delay any changes to the constitution,  thus ’preventing the Commons from committing any rash  actions’.  While the House of Commons was to be constituted  through constituency based elections on the lines of the House  of Commons in the British Parliament and the House of  Representatives in the U.S. Congress, the Senate accorded  equivalent representation to designated regions rather than  the existing provinces.  The number of senators from each  state has consequently varied with changes in the  confederation.  However, the Canadian senators are appointed  by the Governor-General in consultation with the Executive  and hence the Canadian senate has structurally been  subservient to the House of Commons and consequently also  to the Federal executive to an extent.  This system of  appointment of senators was preferred over an electoral  system owing to unfavourable experiences with elected  ’Second Chambers’ like the Legislative Councils in Ontario and  Quebec, prior to the formation of the Confederation in 1867.   Another compelling factor behind the designing of a weak  senate was the then recent example of the United States where  some quarters saw the Civil war as a direct consequence of

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allowing too much power to the states.  However, the role of  the Canadian senate has been widely criticized owning to it’s  method of composition. The genesis of the Indian Rajya Sabha on the other hand  benefited from the constitutional history of several nations  which allowed the Constituent assembly to examine the  federal functions of an Upper House.  However, ’bicameralism’  had been introduced to the provincial legislatures under  British rule in 1921.  The Government of India Act, 1935 also  created an Upper House in the Federal legislature, whose  members were to be elected by the members of provincial  legislatures and in case of Princely states to be nominated by  the rulers of such territories.  However, on account of the  realities faced by the young Indian union, a Council of States  (Rajya Sabha) in the Union Parliament was seen as an  essential requirement for a federal order.  Besides the former  British provinces, there were vast areas of princely states that  had to be administered under the Union.  Furthermore, the  diversity in economic and cultural factors between regions also  posed a challenge for the newly independent country.  Hence,  the Upper House was instituted by the Constitution framers  which would substantially consist of members elected by state  legislatures and have a fixed number of nominated members  representing non-political fields.  However, the distribution of  representation between states in the Rajya Sabha is neither  equal nor entirely based on population distribution.  A basic  formula is used to assign relatively more weightage to smaller  states but larger states are accorded weightage regressively for  additional population.  Hence the Rajya Sabha incorporates  unequal representation for states but with proportionally more  representation given to smaller states.  The theory behind  such allocation of seats is to safeguard the interests of the  smaller states but at the same time giving adequate  representation to the lager states so that the will of the  representatives of a minority of the electorate does not prevail  over that of a majority. In India, Article 80 of the Constitution of India prescribes  the composition of the Rajya Sabha.  The maximum strength  of the house is 250 members, out of which up to 238 members  are the elected representatives of the states and the Union  territories [Article 80(1) (b)], and 12 members are nominated  by the President as representatives of non-political fields like  literature, science, art and social services [Articles 80(1)(a) and  80(3)].  The members from the states are elected by the elected  members of the respective State legislative assemblies as per  the system of Proportional representation by means of the  single transferable vote [Article 80(4)].  The manner of election  for representatives from Union territories has been left to  prescription by parliament [Article 80(5)].  The allocation of  seats for the various states and union territories of the Indian  Union is enumerated in the Fourth schedule to the  constitution, which is read with Articles 4(1) and 80(2).  This  allocation has obviously varied with the admission and re- organisation of States. Under Article 83(1), the Rajya Sabha is a permanent body  with members being elected for 6 year terms and 1/3rd of the  members retiring every 2 years.  These ’staggered terms’ also  lead to a consequence where the membership of the Rajya  Sabha may not reflect the political equations present in the  Lok Sabha at the same time.  The Rajya Sabha cannot be  dissolved and the qualifications for its membership are  citizenship of India and an age requisite of 30 years [Article  84].  As per Article 89, the Vice-president of India is the Ex- officio Chairman of the Rajya Sabha and the House is bound  to elect a Deputy Chairman.  Articles 90, 91, 92 and 93

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further elaborate upon the powers of these functionaries. The American Senate on the other hand accords equal  representation to all 50 states, irrespective of varying areas  and populations.  Under Article 1, section 3 of the U.S.  Constitution, two senators are elected from every state by an  open franchise, and hence the total membership of the Senate  stands at 100.  It is generally perceived in American society  that the office of a senator commands more prestige than that  of a member in the House of Representatives.  As has been  stated before, Senators were chosen by members of the  respective State legislatures before the 17th amendment of  1913 by which the system of open franchise was introduced.   The candidates seeking election to the Senate have to be more  than 30 years old and should have been citizens of the U.S.A.  for more than 9 years and also should have legal residence in  the state they are seeking election from.  Senators are elected  for 6 year terms, with 1/3rd of the members either retiring or  seeking re-election every 2 years.  Senators can run for re- election an unlimited number of times.  The Vice President of  the U.S.A. serves as the presiding officer of the Senate, who  has a right to vote on matters only in case of a deadlock.   However, for all practical purposes the presiding function is  performed by a President Pro Tempore (Temporary presiding  officer), who is usually the senator from the majority party  with the longest continuous service.  The floor leaders of the  majority and minority parties are chosen at separate meetings  for both parties (known as Caucus/conference) that are held  before each new session of Congress.  The Democratic and  Republican parties also choose their respective Whips and  Policy committees in the Caucus. The Senate in the Canadian Parliament, is however not  an elected body.  As indicated earlier, the Senators are  appointed by the Governor-General on the advice of the Prime  Minister.  The membership of the house as of today is 105 and  it accords equivalent representation to designated regions and  not necessarily the constituent provinces and territories.  The  Prime Minister’s decision regarding appointment of senators  does not require the approval of anyone else and is not subject  to review.  The qualifications for membership are an age  requirement of 30 years, citizenship of the Dominion of  Canada by natural birth or naturalization and residency  within the province from where appointment is sought.  In the  case of Quebec, appointees must be residents of the electoral  district for which they are appointed.  Once appointed,  senators hold office until the age of 75 unless they miss two  consecutive sessions of Parliament.  Until 1965, they used to  hold office for life.  Even though the Canadian senate is seen  as entirely dependent on the Executive owing to party  affiliations in appointments, the provision for holding terms till  the age of 75 does theoretically allow for the possibility of the  Opposition to command a majority in the Senate and thereby  disagree with the Lower House or the executive, since the  members of the Lower House are elected for 5 year terms. Now that a general idea has been gained on the methods  of composition of the Second Chambers in India, U.S.A. and  Canada, one can analyse the varying degree of representation  accorded to constituent states in the three systems before  proceeding to compare the policy scope as well as the practical  and extra-legislative powers accorded to these chambers. The idea of equal representation for states in the Senate  was built into the American Constitution.  The 17th  amendment can hence be considered a reform in so far as it  threw the election of senators open to the general public.   However, the weightage accorded to each vote across states is  inversely proportional to the population of the concerned state.  

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Hence, actual representation per vote in the U.S. senate is  higher for smaller states and likewise much lower for more  populous states.  On a theoretical as well as practical  standpoint, this can create situations where the  representatives of the minority of the electorate can guide  legislation over those of the majority. Canada opted for a variation of the equivalent  representation for designated regions and hence the  representation accorded to provinces and territories was  loosely based on population distribution.  However,  demographic changes over many decades impact the actual  representation accorded to each territory.  Furthermore, the  nominal system of appointment to the Canadian Senate  creates the position that the will of the Senate will ordinarily  flow with the federal executive.   The unequal yet weighed proportional representation  method adopted for Rajya Sabha elections was a consequence  of the analysis of representation in other federal bicameral  legislatures.  Even though it was recognized that smaller  states required safeguards in terms of representation, it was  further observed that enforcing equal representation for states  like in the U.S.A. would create immense asymmetry in the  representation of equally divided segments of the electorate.   Furthermore, the formation and re-organisation of states in  India since independence has largely been on linguistic lines  and other factors of cultural homogeneity among groups,  where the sizes of these communities vary tremendously in  comparison to each other.  Hence, allocating seats to the  states in the Rajya Sabha, either on equal terms or absolutely  in accordance with population distribution would have been  extreme solutions.  Hence, the formula applied for the  purposes of allocation of seats in the Fourth schedule seems  to be a justifiable solution.  This point can be illustrated with  the trend that between 1962 and 1987, six new states were  carved out of Assam.  If India had followed the equal  representation model, these new states, containing barely 1%  of India’s population, would have had to be given 25% of all  the votes in the upper chamber.  Hypothetically, the more  populous states would never have allowed this.  Thus an  essential feature of the working of federalism in India i.e. the  creation of new states, some of which had violent separatist  tendencies, would have been difficult under the U.S. principle  of representation for each state equally.         The Irish Constitution like the Indian Constitution does  not have strict federalism.  Residence is not insisted upon  under the Irish Constitution (See Constitution of India by  Basu, 6th Edn. Vol.F).  Similarly, in the case of Japanese  Constitution, qualifications are prescribed by the statute and  not by the Constitution. The various constitutions of other  countries show that residence, in the matter of qualifications,  becomes a constitutional requirement only if it is so expressly  stated in the Constitution.  Residence is not the essence of the  structure of the Upper House.  The Upper House will not  collapse if residence as an element is removed.  Therefore, it is  not a prerequisite of federalism.           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

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Sabha Member does not "ordinarily reside" in the State from  which he is elected. Whether Basic structure doctrine available to determine  validity of a statute

               The question arises as to whether the ground of violation          of the basic feature of the Constitution can be a ground to          challenge the validity of an Act of Parliament just as it can be          a ground to challenge the constitutional validity of a          constitutional amendment. It has been submitted on behalf of          Union of India that basic structure doctrine is inapplicable to          Statutes.                 Mr. Sachar was, however, at pains to submit arguments          in support of affirmative plea in this regard. He referred to Dr.          D.C. Wadhwa & Ors. v. State of Bihar & Ors. [1987 (1)          SCC 378] as an earlier case wherein the Bihar Intermediate          Education Council Ordinance, 1985 was struck down as          unconstitutional and void on the basis that it was repugnant          to the constitutional scheme.                   In that case Government of Bihar was found to have            "made it a settled practice to go on re-promulgating          ordinances from time to time and this was done          methodologically and with a sense of deliberateness".          Immediately at the conclusion of each session of the State          legislature, a circular letter would be sent by the Special          Secretary in the Department of Parliamentary Affairs to all the          Departments intimating to them that the session of the          legislature had been got prorogued and that under Article 213          clause (2)(a) of the Constitution all the ordinances would cease          to be in force after six weeks of the date of reassembly of the          legislature and "that they should therefore get in touch with          the Law Department and immediate action should be initiated"          to get all the concerned ordinances re-promulgated before the          date of their expiry.                 This Court in above fact situation held and observed as          under :-         "When the constitutional provision          stipulates that an ordinance promulgated          by the Governor to meet an emergent          situation shall cease to be in operation at          the expiration of six weeks from the          reassembly of the legislature and the          government if it wishes the provisions of          the ordinance to be continued in force          beyond the period of six weeks has to go          before the legislature which is the          constitutional authority entrusted with          the law-making function, it would most          certainly be a colourable exercise of          power for the government to ignore the          legislature and to repromulgate the          ordinance and thus to continue to          regulate the life and liberty of the citizens          through ordinance made by the          executive. Such a strategem would be          repugnant to the constitutional scheme,          as it would enable the executive to          transgress its constitutional limitation in          the matter of law-making in an emergent          situation and to covertly and indirectly          arrogate to itself the law-making function          of the legislature."                          Noticeably the above view was taken about the          Ordinances issued by the State of Bihar in the face of clear

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       violation of the express constitutional provisions.                  The learned counsel next referred to L. Chandra Kumar          v. Union of India & Ors. [1997 (3) SCC 261 (7 Judges)          (Paragraph 17 page 277 and Paragraph 99 at p.311)], in          which case not only was the Constitutional amendment          depriving High Court of its jurisdiction under Article 226 and          227 (from decisions of Administrative Tribunal) struck down          on the ground that taking away judicial review from the High          Courts violated the basic structure doctrine but even Section          28 of the Administrative Tribunal Act 1985, providing for          "exclusion of jurisdiction of Courts except the Supreme Court          under Article 136 of Constitution" was also struck down.                 In the above context, reference has also been made to          Indra Sawhney v. Union of India & Ors. [2000 (1) SCC 168          at page 202 (Paragraph 65)].  A Bench of 3 Judges of this          Court expressly held in that case that a State enacted law          (Kerala Act on creamy layer) violated the doctrine of basic          structure.  The question before the Court essentially was as to          whether the right to equality guaranteed by the Constitution          and the law declared by the Supreme Court could be set at          naught by a legislative enactment.   The issues raised also          concerned the legislative competence of the State Legislature.           In paragraph 65 of the judgment, it was observed as under:-         "\005.Parliament and the legislature in this          country cannot transgress the basic          feature of the Constitution, namely, the          principle of equality enshrined in Article          14 of which Article 16(1) is a facet.          Whether the creamy layer is not excluded          or whether forward castes get included in          the list of backward classes, the position          will be the same, namely, that there will          be a breach not only of Article 14 but of          the basic structure of the Constitution.          The non-exclusion of the creamy layer or          the inclusion of forward castes in the list          of backward classes will, therefore, be          totally illegal. Such an illegality offending          the root of the Constitution of India          cannot be allowed to be perpetuated even          by constitutional amendment. The Kerala          Legislature is, therefore, least competent          to perpetuate such an illegal          discrimination. What even Parliament          cannot do, the Kerala Legislature cannot          achieve."                          It is well settled that legislation can be declared invalid or          unconstitutional only on two grounds namely, (i) lack of          legislative competence and (ii) violation of any fundamental          rights or any provision of the Constitution (See \026 Smt. Indira          Nehru Gandhi v. Raj Narain, [1975 Supp SCC 1] ). In other          cases relied upon by Mr. Sachar where observations have been          made about a statute being contrary to basic structure, the          question was neither raised nor considered that basic          structure principle for invalidation is available only for          constitutional amendments and not for statutes.                 A.N. Ray, CJ, in Indira Nehru Gandhi’s case (supra),          observed in paragraph 132 as under: -         "The contentions on behalf of the          respondent that ordinary legislative          measures are subject like Constitution          Amendments to the restrictions of not          damaging or destroying basic structure,          or basic features are utterly unsound. It

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       has to be appreciated at the threshold          that the contention that legislative          measures are subject to restrictions of          the theory of basic structures or basic          features is to equate legislative measures          with Constitution Amendment.         (emphasis supplied)"                          In paragraph 153 of his judgment, he ruled as under: -         "The contentions of the respondent that          the Amendment Acts of 1974 and 1975          are subject to basic features or basic          structure or basic framework fails on two          grounds. First, legislative measures are          not subject to the theory of basic features          or basic structure or basic framework.          Second, the majority view in          Kesavananda Bharati’s case (supra) is          that the Twenty-ninth Amendment which          put the two statutes in the Ninth          Schedule and Article 31-B is not open to          challenge on the ground of either damage          to or destruction of basic features, basic          structure or basic framework or on the          ground of violation of fundamental          rights."         (emphasis supplied)                          In same case, K.K. Mathew, J. in Paragraph 345 of his          separate judgment ruled as under: -         "I think the inhibition to destroy or          damage the basic structure by an          amendment of the Constitution flows          from the limitation on the power of          amendment under Article 368 read into it          by the majority in Bharati’s case (supra)          because of their assumption that there          are certain fundamental features in the          Constitution which its makers intended          to remain there in perpetuity. But I do          not find any such inhibition so far as the          power of Parliament or State Legislatures          to pass laws is concerned. Articles 245          and 246 give the power and also provide          the limitation upon the power of these          organs to pass laws. It is only the specific          provisions enacted in the Constitution          which could operate as limitation upon          that power. The preamble, though a part          of the Constitution, is neither a source of          power nor a limitation upon that power.          The preamble sets out the ideological          aspirations of the people. The essential          features of the great concepts set out in          the preamble are delineated in the          various provisions of the Constitution. It          is these specific provisions in the body of          the Constitution which determine the          type of democracy which the founders of          that instrument established; the quality          and nature of justice, political, social and          economic which was their desideratum,          the content of liberty of thought and          expression which they entrenched in that          document, the scope of equality of status

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       and of opportunity which they enshrined          in it. These specific provisions enacted in          the Constitution alone can determine the          basic structure of the Constitution as          established. These specific provisions,          either separately or in combination          determine the content of the great          concepts set out in the preamble. It is          impossible to spin out any concrete          concept of basic structure out of the          gossamer concepts set out in the          preamble. The specific provisions of the          Constitution are the stuff from which the          basic structure has to be woven. The          argument of Counsel for the respondent          proceeded on the assumption that there          are certain norms for free and fair          election in an ideal democracy and the          law laid down by Parliament or State          Legislatures must be tested on those          norms and, if found wanting, must be          struck down. The norms of election set          out by Parliament or State Legislatures          tested in the light of the provisions of the          Constitution or necessary implications          therefrom constitute the law of the land.          That law cannot be subject to any other          test, like the test of free and fair election          in an ideal democracy."                  (emphasis supplied)                          In Paragraph 356, he proceeded to rule as under: -         "There is no support from the majority in          Bharati’s case (supra) for the proposition          advanced by Counsel that an ordinary          law, if it damages or destroys basic          structure should be held bad or for the          proposition that a constitutional          amendment putting an Act in the Ninth          Schedule would make the provisions of          the Act vulnerable for the reason that          they damage or destroy a basic structure          constituted not by the fundamental rights          taken away or abridged but some other          basic structure. And, in principle, I see          no reason for accepting the correctness of          the proposition."         (emphasis supplied)                          In same case, Chandrachud, J. in Paragraph 691 of his          separate judgment ruled as under: -         "Ordinary laws have to answer two tests          for their validity: (1) The law must be          within the legislative competence of the          legislature as defined and specified in          Chapter I, Part XI of the Constitution,          and (2) it must not offend against the          provisions of Article 13(1) and (2) of the          Constitution. "Basic structure", by the          majority judgment, is not a part of the          fundamental rights nor indeed a          provision of the Constitution. The theory          of basic structure is woven out of the          conspectus of the Constitution and the          amending power is subjected to it

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       because it is a constituent power. "The          power to amend the fundamental          instrument cannot carry with it the power          to destroy its essential features \027 this, in          brief, is the arch of the theory of basic          structure. It is wholly out of place in          matters relating to the validity of ordinary          laws made under the Constitution."         (emphasis supplied)                          In Paragraph 692, he would rule as under: -         "There is no paradox, because certain          limitations operate upon the higher power          for the reason that it is a higher power. A          constitutional amendment has to be          passed by a special majority and certain          such amendments have to be ratified by          the legislatures of not less than one-half          of the States as provided by Article          368(2). An ordinary legislation can be          passed by a simple majority. The two          powers, though species of the same          genus, operate in different fields and are          therefore subject to different limitations."          (emphasis supplied)                          A Constitution Bench (7 Judges) in State of Karnataka          v. Union of India & Anr. [(1977) 4 SCC 608] held, per          majority, (paragraph 120) as under:-         "\005\005 in every case where reliance is          placed upon it, in the course of an attack          upon legislation, whether ordinary or          constituent (in the sense that it is an          amendment of the Constitution), what is          put forward as part of "a basic structure"          must be justified by references to the          express provisions of the          Constitution\005\005"                          In Paragraph 197, it was observed as under: -         "\005\005.if a law is within the legislative          competence of the Legislature, it cannot          be invalidated on the supposed ground          that it has added something to, or has          supplemented, a constitutional provision          so long as the addition or          supplementation is not inconsistent with          any provision of the Constitution\005."                          The following observations in Paragraph 238 of same          judgment are also germane to the issue: -         "Mr. Sinha also contended that an          ordinary law cannot go against the basic          scheme or the fundamental backbone of          the Centre-State relationship as          enshrined in the Constitution. He put his          argument in this respect in a very          ingenious way because he felt difficulty in          placing it in a direct manner by saying          that an ordinary law cannot violate the          basic structure of the Constitution. In the          case of Smt Indira Nehru Gandhi v.          Shri Raj Narain such an argument was          expressedly rejected by this Court\005\005.."         

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               The doctrine of ’Basic Feature’ in the context of our          Constitution, thus, does not apply to ordinary legislation          which has only a dual criteria to meet, namely:         (i)     It should relate to a matter within its          competence;          (ii)    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.                              Reference can also be made in this respect to Public          Services Tribunal Bar Association v. State of U.P. & Anr.          [2003 (4) SCC 104] and State of Andhra Pradesh and Ors.          V. McDowell & Company & Ors. [1996(3) SCC 709].                 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                   Mr. Nariman further submitted that the Constitution and          the Representation of People Act, 1951 are to be read as an          "integral scheme". In this context, reference was made to the          fact that the Provisional Parliament that passed the          Representation of People Act, 1950 and the Representation of          People Act, 1951 was the same as the Constituent body that          had passed and adopted the Constitution.         In support of the contention about the integrated scheme          of ’Election’, Mr. Nariman would first refer to N.P.          Ponnuswami v. Returning Officer, Namakkal          Constituency & Ors. [AIR 1952 SC 64:1952 SCR 218].  In          that case, the appellant had challenged the dismissal by the          High Court of his petition under Article 226 of the          Constitution praying for a writ of certiorari to quash the order          of the Returning Officer rejecting his nomination paper in an          election, on the ground that it had no jurisdiction to interfere          with the order of the Returning Officer by reason of the          provisions of Article 329(b) of the Constitution.          Justice Fazal Ali, speaking for the Bench, observed as          under:          "Broadly speaking, before an election          machinery can be brought into operation,          there are three requisites which require          to be attended to, namely, (1) there          should be a set of laws and rules making          provisions with respect to all matters          relating to, or in connection with,          elections, and it should be decided as to          how these laws and rules are to be made;          (2) there should be an executive charged          with the duty of securing the due conduct          of elections; and (3) there should be a          judicial tribunal to deal with disputes          arising out of or in connection with          elections. Articles 327 and 328 deal with          the first of these requisites, Article 324

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       with the second and Article 329 with the          third requisite. \005\005.. Part XV of the          Constitution is really a code in itself          providing the entire ground-work for          enacting appropriate laws and setting up          suitable machinery for the conduct of          elections.                  "The Representation of the People Act,          1951, which was passed by Parliament          under Article 327 of the Constitution,          makes detailed provisions in regard to all          matters and all stages connected with          elections to the various legislatures in          this country.                  "The fallacy of the argument lies in          treating a single step taken in          furtherance of an election as equivalent          to election. The decision of this appeal          however turns not on the construction of          the single word "election", but on the          construction of the compendious          expression \027 "no election shall be called          in question" in its context and setting,          with due regard to the scheme of Part XV          of the Constitution and the          Representation of the People Act, 1951.          Evidently, the argument has no bearing          on this method of approach to the          question posed in this appeal, which          appears to me to be the only correct          method."          (Emphasis supplied)                                   In Mohinder Singh Gill & Anr. v. The Chief Election          Commissioner, New Delhi & Ors. [1978 (1) SCC 405 (427)],          a similar view was taken in the following words: -          "The paramount policy of the          Constitution-framers in declaring that no          election shall be called in question except          the way it is provided for in Article 329(b)          and the Representation of the People Act,          1951, compels us to read, as Fazal Ali J.          did in Ponnuswami, the Constitution and          the Act together as an integral scheme.           The reason for postponement of election          litigation to the post-election stage is that          elections shall not unduly be protracted          or obstructed. The speed and          promptitude in getting due representation          for the electors in the legislative bodies is          the real reason suggested in the course of          judgment.          38. Article 324, which we have set out          earlier, is a plenary provision vesting the          whole responsibility for national and          State elections and, therefore, the          necessary power to discharge that          function.  It is true that Article 324 has to          be read in the light of the constitutional          scheme and the 1950 Act and the 1951          Act."         

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                        The above view was reiterated by the Constitution Bench          in Gujarat Assembly Election case [2002 (8) SCC 237].  By          reading the Constitution and the Representation of People Act          together as constituting a scheme, it was observed as under: -         "(e) Neither, under the Constitution nor          under the Representation of the People          Act, any period of limitation has been          prescribed for holding election for          constituting Legislative Assembly after          premature dissolution of the existing one.           However, in view of the scheme of the          Constitution and the Representation of          the People Act, the elections should be          held within six months for constituting          Legislative Assembly from the date of          dissolution of the Legislative Assembly."                                   Mr. Nariman submitted that the same Parliamentary          body which passed the Constitution, acting as the Provisional          Parliament under Article 379 (since repealed), also passed the          law with regard to who was to be the representative of a State          in the Council of States.  He pointed out that Section 3 of the          RP Act 1951, as originally enacted, while prescribing          "Qualifications for membership of the Council of States" had          made it essential that the person offering himself to be chosen          as a representative of any State in the Council of States must          be "an elector" for a Parliamentary Constituency "in that          State", which principle applied uniformly to Part A or Part B          States (other than the State of Jammu & Kashmir). In the          original enactment, there was a separate arrangement for Part          C States, some of which were put in different groups to provide          for unified constituencies for returning a common          representative (for the State or the Group) to the Council of          States, though the qualification in the nature of compulsory          status of elector "in that State" would apply there also, with          some modification here and there, in that, generally the          person was required to be "an elector for a Parliamentary          constituency in that State or in any of the States in that          group, as the case may be". In the case of the States of Ajmer          and Coorg or of the States of Manipur and Tripura, which          formed two separate groups for the purpose in the Council of          States, the arrangement was to rotate the seats and so it was          essential for the candidate to be "an elector for any          Parliamentary constituency in the State in which the election          of such representative is to be held".                 Mr. P.P. Rao, Senior Advocate appearing for the State of          Tamil Nadu had a similar take on the subject and pressed in          aid the principle of ’contemporanea expositio’. His submission          was that this principle is relevant for interpreting the words          "the representative of each State" in Article 80(4) of the          Constitution.  His argument was that the RP Acts 1950 and          1951 are contemporaneous legislations made by the          Constituent Assembly itself acting as provisional Parliament          and that they are a useful aid for the interpretation of Articles          79 and 80, just as subordinate legislation is for interpreting an          Act.                 In the above context, Mr. Rao referred to various          decisions. He would urge that the following words, extracted          from Paragraph 236 in I.C. Golak Nath & Ors. v. State of          Punjab & Anr. [(1967) 2 SCR 762] be borne mind:         "The best exposition of the Constitution is          that which it has received from          contemporaneous judicial decisions and

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       enactments. We find a rare unanimity of          view among judges and legislators from          the very commencement of the          Constitution that the fundamental rights          are within the reach of the amending          power. No one in the Parliament doubted          this proposition when the Constitution          First Amendment Act of 1951 was          passed. It is remarkable that most of the          members of this Parliament were also          members of the Constituent Assembly."         (emphasis supplied)                                   He would then refer to Hanlon v. The Law Society          [(1980) 2 All ER 199, 218 (H.L.)], it was held as under:         "A study of the cases and of the leading          textbooks (Craies on Statute Law (7th          Edn., 1971, p. 158), Maxwell on the          Interpretation of Statutes (12th Edn.,          1969, pp 74-75) Halsbury’s Laws (3rd          Edn.) (1961) Vol.36, paragraph 606, p.          401) appears to me to warrant the          formulation of the following propositions:          (1)     Subordinate legislation may be used          in order to construe the parent Act,          but only where power is given to          amend the act by regulations or          where the meaning of the Act is          ambiguous.           (2)     Regulations made under the Act          provide a parliamentary or          administrative contemporanea          expositio of the Act but do not          decide or control its meaning to          allow this would be to substitute the          rule-making authority or the judges          as interpreter and would disregard          the possibility that the regulation          relied on was misconceived or ultra          vires.           (3)     Regulations which are consistent          with a certain interpretation of the          Act tend to confirm that          interpretation.           (4)     Where the Act provides a framework          built on by contemporaneously          prepared regulations, the latter may          be a reliable guide o the meaning of          the former.           (5)     The regulations are a clear guide,          and may be decisive, when they are          made in pursuance of a power to          modify the Act, particularly if they          come into operation on the same          day as the Act which they modify.           (6)    Clear guidance may also be obtained          from regulations which are to have          effect as if enacted in the parent          Act."                                   Mr. Rao also placed reliance on British Amusements          Catering Trades Association v. Westminister City Council          [(1988) 1 ALL ER 740, 745 d.e. (H.L.)], a judgment that is

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       said to have followed the case referred to in the preceding          Paragraph.                  In Desh Bandhu Gupta And Co. & Ors.  v. Delhi Stock          Exchange Association Ltd. [(1979) 4 SCC 565], this court          held as under:         "The principle of contemporanea expositio          (interpreting a statute or any other          document by reference to the exposition          it has received from contemporary          authority) can be invoked though the          same will not always be decisive of the          question of construction (Maxwell 12th ed.          P.  268). In Crawford on Statutory          Construction (1940 ed.) in paragraph 219          (at pp. 393-395) it has been stated that          administrative construction (i.e.          contemporaneous construction placed by          administrative or executive officers          charged with executing a statute)          generally should be clearly wrong before          it is overturned; such a construction,          commonly referred to as practical          construction, although not controlling, is          nevertheless entitled to considerable          weight; it is highly persuasive. In          Baleshwar Bagarti v. Bhagirathi Dass ILR          35 Cal. 701 at 713 the principle, which          was reiterated in Mathura Mohan Saha v.          Ram Kumar Saha ILR 43 Cal. 790 : AIR          1916 Cal 136  has been stated by          Mookerjee, J., thus:                   It is well-settled principle of          interpretation that courts in construing a          statute will give much weight to the          interpretation put upon it, at the time of          its enactment and since, by those whose          duty it has been to construe, execute and          apply it\005  I do not suggest for a moment          that such interpretation has by any          means a controlling effect upon the          courts; such interpretation may, if          occasion arises, have to be disregarded          for cogent and persuasive reasons, and in          a clear case of error, a court would          without hesitation refuse to follow such          construction."                                   The State of U.P. & Ors. v. Babu Ram Upadhya          [(1961) 2 SCR 679(CB)], it was observed as under:          "Rules made under a statute must be          treated for all purposes of construction or          obligation exactly as if they were in the          Act and are to be of the same effect as if          contained in the Act, and are to be          judicially noticed for all purposes of          construction or obligation: see Maxwell          "On the Interpretation of Statutes", 10th          edn., pp. 50-51."                          In State of Tamil Nadu v. M/s. Hind Stone & Ors.          [(1981) 2 SCC 205], it was held as under:          "The Mines and Minerals (Regulation and          Development) Act is a law enacted by

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       Parliament and declared by Parliament to          be expedient in the public interest.  Rule          8-C has been made by the State          Government by notification in the official          Gazette, pursuant to the power conferred          upon it by Section 15 of the Act.  A          Statutory rule, while ever subordinate to          the parent statute, is otherwise, to be          treated as part of the statute and as          effective.  "Rules made under the statute          must be treated for all purposes of          construction or obligation exactly as if          they were in the act and are to be of the          same effect as if contained in the Act and          are to be, judicially noticed for all          purposes of construction or obligation":          (State of U.P. v. Babu Ram Upadhya          (1961) 2 SCR 679, 702; see also Maxwell:          INTERPRETATION OF STATUTES, 11th          Edn. Pp. 49-50).  So, statutory rules          made pursuant to the power entrusted by          Parliament are law made by Parliament          within the meaning of Article 302 of the          Constitution."

In Commissioner of Income Tax, Jullundur v. Ajanta  Electricals, Punjab [(1995) 4 SCC 182], it was ruled thus: "Though the rule cannot affect, control or  derogate from the section of the Act, so  long as it does not have that effect, it has  to be regarded as having the same force  as the section of the Act."

       The submission, thus, is that 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 itself acting as provisional  Parliament just as subordinate 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.  When the  Act of 1951 was debated, no one argued that the residence  qualification had already been decided upon by the  Constituent Assembly and, therefore, no debate should take  place.  The difference between the original and derived power  is the basis of the doctrine of basic structure.         The principle of "contemporanea expositio’, is totally  irrelevant if not misleading for present purposes.  If the  Constitution had used an 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 the while amending it in 2003, the  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

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of residence) to a Constitutional requirement and rather  showed consciousness that the 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.         The provision of residence existed, prior to impugned  amendment, in a Parliamentary law, i.e., the Representation of  the People Act, 1951 (and not the Constitution).  There 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.          It has been argued that it was the Provisional Parliament,  which succeeded the Constituent Assembly, that had passed  the RP Act, 1951.  However, if that reasoning were 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. Restrictions under Article 368         It has been submitted that Section 3 of RP Act, 1951, as  it stood before amendment, read with Article 80(4), had  ensured the "representation of States" in Parliament. Referring  to proviso (d) in Article 368 (2), it has been argued that even a  Constitutional amendment making any change in  representation of States in Parliament cannot be effectuated  without the ratification by one half of the States Legislatures.  On this premise, it has been submitted that it should follow,  as a necessary corollary, that the change made in Section 3,  RP Act, 1951 is one that no longer ensures, by Parliamentary  law, the representation of States in Parliament, or in any case  one that makes a change in the existing law, and thus an  amendment that could not be effectuated simply by amending  Section 3 of the RP Act, 1951.         Article 368 relates to power of Parliament to amend the  Constitution and the procedure therefor. The Proviso in  question puts limits on the power of Parliament to amend the  Constitution.  Article 368 (2), to the extent relevant, reads as  under: - "An amendment of the Constitution may  be initiated only by the introduction of a  Bill for the purpose in either House of  Parliament, and when the Bill is passed  in each House by a majority of the total  membership of that House and by a  majority of not less than two-thirds of  the members of that House present and  voting, it shall be presented to the  President who shall give his assent to  the Bill and thereupon the Constitution  shall stand amended in accordance with

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the terms of the Bill:

Provided that if such amendment seeks  to make any change in \026

(a)     xxxx (b)     xxxx (c)     xxxx

(d)     the representation of States in   Parliament, or (e)     xxxx,

the amendment shall also require to be  ratified by the Legislatures of not less  than one-half of the States by resolution  to that effect passed by those  Legislatures before the Bill making  provision for such amendment is  presented to the President for assent."   

       The above provision shows that subject to some  conditions and procedural requirements, the Parliament is  competent to amend the Constitution except, inter alia, in the  event the amendment sought to be made, changes "the  representation of States in Parliament".  In that case, the  amendment Bill would require, before presentation to the  President for assent, ratification by the Legislatures of not less  than one half of "the States".  A question thus has been raised  as to the scope of the expression "representation of the States"  occurring in Proviso (d) to Article 368 (2).          The argument is without merit in the context in which it  has been made. 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) are not  synonymous or employed in same sense. These expressions  are materially different and used in different context in 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 1, having declared in its sub-Article (1) that India  "shall be a Union of States", provides through sub-Article (2)  as under:- "The States and the territories thereof  shall be as specified in the First  Schedule."  

       The First Schedule mentions the names of the States and  Union Territories and specifies their respective territories.  Article 2 empowers the Parliament to admit, by law into the  Union of India, or to establish new States. Article 3 empowers  Parliament, by law, inter alia, to "form a new State", "increase  the area of any State", "diminish the area of any State" or  "alter the name of any State". This power has been used many  a time by Parliament to reorganize the States and their  territories. Article 4 is of great relevance for purposes at hand.  It reads as under: - "Laws made under articles 2 and 3 to  provide for the amendment of the  First and the Fourth Schedules and  supplemental, incidental and  consequential matters.- (1) Any law

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referred to in article 2 or article 3 shall  contain such provisions for the  amendment of the First Schedule and  the Fourth schedule as may be  necessary to give effect to the provisions  of the law and may also contain such  supplemental, incidental and  consequential provisions (including  provisions as to representation in  Parliament and in the Legislature or  Legislatures of the State or States  affected by such law) as Parliament may  deem necessary.  

(2) No such law as aforesaid shall be  deemed to be an amendment of the  Constitution for the purposes of article  368."

       Article 4 thus also uses the expression "representation in  Parliament". It specifically 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.         Article 80 (1) prescribes in clause (b) that, besides the 12  members nominated by the President, the Council of States  shall consist of not more than 238 "representatives" of States  and Union Territories. If an amendment were to increase or  decrease this composition, it would result in change in the  ratio of representation of States in Parliament.           The provision contained in Article 80 (1) (b), in so far as it  pertained to the maximum number of members constituting  the House has remained unchanged ever since it was adopted  in the Constitution by the Constituent Assembly on 26th   November, 1949. But this figure of seats of the representatives  of States (and Union Territories) was subject to allocation to  the States and Union Territories in terms of the Fourth  Schedule, as provided in Article 80 (2). The Fourth Schedule  provided for the allocation of seats in the Council of States and  the total number of seats indicated therein has varied from  time to time, subject to the ceiling of 238, as given in Article  80 (1) (b).          In the Fourth Schedule, as originally enacted, the seats  allocated to States were 205. By way of the Constitution  (Seventh Amendment) Act, 1956, which came into effect on 1st   November, 1956, the Fourth Schedule was substituted and  consequently, the total number of seats allocated in the  Council of States was increased to 220, also indicating the  distribution thereof among the various States. This figure of  "220" was periodically increased by the Constitution (Thirty  Sixth Amendment) Act, 1975 and various States  Reorganisation Acts passed by the Parliament from time to  time, lastly by the Goa, Daman and Diu Reorganisation Act,  1987 which came into effect on 30 May 1987, whereby State of  Goa was inserted into the Fourth Schedule and the figure  ’increased to ’233’. The figure "233" occurs in the Fourth  Schedule as on date.           It has been submitted that every time there has been  reorganization of States, the consequential amendments in the  Fourth Schedule have been brought about through  Constitutional amendments, in accord with the provisions  contained in Article 368, in particular Proviso (d) thereof. It

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has been pointed out that even the existing representatives of  the States affected by the reorganization were reflected by  name in the Constitutional amendments and allocated to the  States, having regard to their respective domicile.         The argument based on the provision of the Acts relating  to Reorganization of States does not carry the matter further  at all.  Obviously, at the time of creation of new States, the  existing members of the Council of States had to be allocated  to the old or new States.  This was done in conformity with the  then existing principles underlying the relevant law.  The  documents placed before the Court show that specific  consideration of a residential requirement was never made  after Paragraph 6 of the Fourth Schedule in the first draft  Constitution dated 27th October 1947 had been deleted on 11th  February 1948.          The amendment of the Constitution can affect  "representation of the States" in Parliament, within the  meaning of the proviso extracted above, in more ways than  one which we will presently show.         Article 80 (4) prescribes the manner of voting and  election of the representatives of States for Council of States in  the following terms: - "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."

If the above-mentioned prescribed manner of voting and  election is sought to be changed, for example, by including  members of Legislative Councils in such States as have  legislative Councils or by change in the system of proportional  representation, that would also have the effect of changing the  representation of the States. Article 83 (1) provides as under: - "The Council of States shall not be  subject to dissolution, but as nearly as  possible one-third of the members  thereof shall retire as soon as may be on  the expiration of every second year in  accordance with the provisions made in  that behalf by Parliament by law."

       If the duration of Council of States as provided in Article  83(1) is sought to be changed such amendment would also  affect the representation of the States.         Fourth Schedule to the Constitution lays down the  number of persons 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.  In the instant case, 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.         The argument that the impugned amendment affects the  "representation" of the States in the Council of States is not  correct.  The States still elect their representatives to the  Council of States through the elected members of their  respective legislative assemblies as provided in the  Constitution.  There was, therefore, no need for a  constitutional amendment as has been contended. Distinction between the two Houses

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       Mr. Nariman, learned Senior Advocate pointed out that  under un-amended Section 3 of the RP Act 1951, one of the  requisite qualifications for a person offering his candidature  for membership to the Council of States, since beginning had  been that he must be "an elector" for a Parliamentary  Constituency in the State or Union Territory which he seeks to  represent. On the other hand, as per Section 4 of the RP act  1951, in the case of the House of the People, a person is  qualified to be chosen to fill a seat in that House if he is "an  elector for any Parliamentary constituency"; that is to say, 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.         He pointed out that the composition of the House of the  People, as per Article 81(1)(a), is different, since it consists of  "members chosen by direct election from territorial  constituencies in the States", such members not representing,  nor expected to represent, the States from which they are so  chosen. This is why the ’Qualifications for the membership of  the House of the People’, as prescribed in Section 4 of the RP  Act 1951, have always permitted "an elector for any  Parliamentary constituency" to get chosen to fill a seat in the  House of the People.         The argument is that by the impugned amendment in  Section 3, the qualification for Membership of the Council of  States is now "equated" with that of the House of the People,  the only difference remaining being the manner of election, the  former by indirect election and the latter by direct election.         While Section 3 has been amended to substitute the  words "in that State or territory" with the words "in India",  Section 4 remains the same as before. The result is that the  point of distinction between the characters of representation in  the two Houses has become obliterated.         The word "elector" has been defined in Section 2 (e) of RP  Act 1951 and means "a person whose name is entered in the  electoral roll of that constituency for the time being in force"  and who is not subject to any of the disqualifications  mentioned in Section 16 of the RP Act, 1950.          The above mentioned statutory provisions, according to  Mr. Nariman, unmistakably show that the test of "ordinary  residence" has been woven into the constitutional scheme as  an essential qualification for membership of either House of  Parliament, which can be residence anywhere in India for  House of the People, but must be residence in the State one  seeks to represent in the Council of States, as required in  Section 3 of the 1951 Act as it existed till the impugned  amendment brought about a qualitative change.         Mr. Nariman contended 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 the  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. According to him, 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, since a person is  qualified to be chosen as a representative of any State in the  Council of States if he is an elector for a Parliamentary  constituency in that State or in any other State.         He further argued 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

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"representative" of the State, as he was required to be under  Article 80.  The intendment of the Constitution that he should  be a representative of the State is required to be reflected in  some statutory requirement as to qualification qua the person  elected and the State, be it birth, residence for some period in  the past or at present, or ordinary residence. 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.          These arguments do not appeal to us. 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).         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 prerogatives,  especially in the matter of legislation, remain unchanged.          Mr. Nariman also urged that Article 80 of the  Constitution (Composition of the Council of States) be read in  contrast of Article 81 (Composition of the House of the People).  He was at pains to point out that under Article 80, the Council  of States must consist of "representatives" of the States and  Union Territories and that it is only the representatives of  "each State" in the Council of States who are to be elected by  the elected Members of the Legislative Assembly of the State  [Article 80(4)]. On the other hand, under Article 81, the House  of the People consists of "members" chosen by direct election  from the territorial constituencies in the State, i.e. chosen by  the electors in one of the Parliamentary Constituencies in  India.         His argument is that if the intention was that the body  called the Council of States was also to consist of members  "chosen", then Article 80 would have used the expression  ’members chosen by elected representative of State Legislative  Assemblies and Union Territories’ instead of the expression  "representatives of the States and Union Territories."         He proceeded to build up on the argument by submitting  that the expression "representatives of the State" in Article 80  (1) (b) and Article 80 (2), and the expression "representatives of  each State" in Article 80 (4), are not merely tautologous or  mere surplussage, but intended to be words of critical and  crucial significance.         Almost on similar lines, Mr. P.P. Rao, learned counsel for  State of Tamil Nadu, submitted that the Democratic Republic  constituted by the Constitution of India, as reflected in the  expression used in the Preamble - "We, the people of India" -  means ’We the people of the States and Union Territories’ - in  other words, the citizens of India, inhabitants of the States  and the Union Territories.         It has been argued that the principles underlying "the  House of the People" are evident from Articles 79 and 81.  It is  a House of the People of India as a whole.  Its members are  chosen by direct election from territorial constituencies in the  States.  To become a member one has to be an Indian first.  A  non-Indian cannot represent the people of India. Only an  elector in any part of India will have the capacity to represent  the people of India.         It has been submitted, the term "the Council of States" in  Articles 79 and 80, likewise means the House that represents  the States.  Each State is a territorial constituency by itself for  this House.  It is argued that only a person belonging to a  State will have the capacity to represent the State in the Upper

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House and that a person could claim to belong to a State only  by birth, domicile or residence.  On this premise, it has been  submitted that some such visible nexus between the State and  the person seeking to be its representative is a must in the  scheme of the Constitution.         It is further the argument of the learned Counsel for the  petitioners 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, having due regard to its  federal character and the foundational feature of democracy,  namely the system of self-governance.         In above context, the Counsel would rely upon Sub- Committee on Judicial Accountability v. UOI & Ors.  [(1991) 4 SCC 699] and P.V. Narasimha Rao V. State (CBI/  SPE) [1998 (4) SCC 626].          In Sub-Committee on Judicial Accountability v. Union  of India (supra), this Court ruled thus:  "In interpreting the constitutional  provisions in this area the Court should  adopt a construction which strengthens  the foundational features and the basic  structure of the Constitution."

       The following observations made in paragraph 47 in P.V.  Narasimha Rao’s case (supra) have been relied upon:  "As mentioned earlier, the object of the  immunity conferred under Article 105(2)  is to ensure the independence of the  individual legislators. Such  independence is necessary for healthy  functioning of the system of  parliamentary democracy adopted in the  Constitution. Parliamentary democracy  is a part of the basic structure of the  Constitution. An interpretation of the  provisions of Article 105(2) which would  enable a Member of Parliament to claim  immunity from prosecution in a  criminal court for an offence of bribery  in connection with anything said by him  or a vote given by him in Parliament or  any committee thereof and thereby place  such Members above the law would not  only be repugnant to healthy  functioning of parliamentary democracy  but would also be subversive of the rule  of law which is also an essential part of  the basic structure of the Constitution.  It is settled law that in interpreting the  constitutional provisions the court  should adopt a construction which  strengthens the foundational features  and the basic structure of the  Constitution. (See: Sub-Committee on  Judicial Accountability v. Union of  India (1991) 4 SCC 699 SCC at p.  719.)"

It has been argued by Mr. Nariman that it is because of  the scheme of the Constitution and the RP Act, 1951, that  representation of the States in the Council of States has to be  secured and assured viz. by insisting upon, as a qualification,  some link or nexus between the person elected to the Council

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of States by the State Assembly and the State which he is to  represent in the Council of States. That connection, according  to him, was, and for 53 years remained a connection, by way  of "ordinary residence" in the State. Section 3 of the RP Act,  1951, fulfilled the role of not only providing a qualification but  defining who was to be the "representative of each State" in  Article 80 (4). 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". The above mentioned argument to the extent founded on  the principle of basic structure need not detain us any further  as it is the same argument as dealt with in the context of  federal structure, albeit with a slightly different shade.   Moreover, the link factor is retained by the impugned  amendments inasmuch as the candidate for the election to the  Council of States is now required to be an elector for  Parliamentary constituency.  Therefore, the linking factor is  made broad based. Article 80 shows that the Council of States consists of 12  Members nominated by the President and 238 representatives  of the States and Union Territories.  The representatives fill  the seats in accordance with Article 80 (2).  Both, the members  nominated by the President and the representatives elected by  the State Legislatures are collectively ’Members’ of the Council  of States, as clearly flowing from Article 83.   Further answer to this argument can be found in Article  84 itself, which refers to ’membership’ of the Parliament, and  this covers the Council of States as well as the House of the  People.  Then, Article 84 also uses the word ’chosen’ with  reference to filling a seat in Parliament, in both the Council of  States as well as House of the People.  Therefore, a  representative of the State is as much a Member of Parliament  as is a member of the House of the People.  The expression  "representatives" is equally used with reference to the House of  the People. There is thus no distinction between the expressions  ’members’ and ’representatives’.  The submissions of the  learned Counsel are untenable. The plea that the choice of  expression "representative" in relation to the Council of States  as against word "member" used in relation to the House of the  People holds the key is also liable to be rejected. Relevance of the word "Each" It is the submission of Mr. Nariman that whilst it is open  to Parliament to prescribe by laying the qualifications for being  chosen to the Council of States, the prescribed qualifications  must be such as to ensure that the person so chosen is a  representative of that State, the Assembly of which has elected  him.  He submitted 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. Emphasis has been placed on the words representatives  of "each State" in Article 80(4) of the Constitution. In Upper  Chambers of other Federal Constitutions, like the Senate in  United States, members are elected by the electorate by  treating each State as a Unit equal of the other.  There would  be no doubt in such Constitutions that the elected members

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represent the State. In the Indian Constitution, we did not opt  for equal representation of States in the Council of States. This  could have led to an impression that Rajya Sabha Members of  Parliament do not represent the State, as each State would  have different ratio in the number of members representing it.   It appears that in order to dispel such an impression it has  been provided that, notwithstanding the fact that they are  elected as per allocation made in the Forth Schedule, on the  basis of population, members of the Council of States are  indeed representatives of the State. The reliance on the word "each" is misplaced.  It fails to  notice as to why the word "each" was inserted in the Article in  the first place. Sub-Articles (4) & (5) of Article 80, in its  original form, read as under: - "(4) The representatives of each State  specified in Part A or Part B of the First  Schedule in the Council of State 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.

(5) The representatives of the State  specified in Part C of the First Schedule  in the Council of States shall be chosen  in such manner as Parliament may by  law prescribe."

       By the Constitution (Seventh Amendment) Act 1956,  which brought about States reorganization, among others,  Article 80 was amended. The Statement of Objects and  Reasons of the Constitution (Seventh Amendment) Act 1951,  to the extent germane here, read as follows:- "Clause 2. - The reorganization scheme  involves not only the establishment of  new States and alterations in the area  and boundaries of the existing States, but  also the abolition of the three categories  of States (Part A, Part B and Part C  States) and the classification of certain  areas as Union territories.  Article 1 has  to be suitably amended for this purpose  and the First Schedule completely  revised.

Clause 3. - The amendments proposed in  Article 80 are formal and consequential.   The territorial changes and the formation  of new States and Union Territories as  proposed in Part II of the States  Reorganization Bill, 1956, involve a  complete revision of the Fourth Schedule  to the Constitution by which the seats in  the Council of States are allocated to the  existing States. The present allocation is  made on the basis of the population of  each State as ascertained at the census  of 1941 and the number of seats allotted  to each Part A and Part B State is  according to the formula, one seat per  million for the first five millions and one  seat for every additional two millions or  part thereof exceeding one million. It is

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proposed to revise the allocation of seats  on the basis of the latest census figures,  but according to the same formula as  before."

Clause 4. - The abolition of Part C States  as such and the establishment of Union  territories make extensive amendment of  articles 81 and 82 inevitable. The  provision in Article 81(1)(b) that "the  States shall be divided, grouped or  formed into territorial constituencies" will  no longer be appropriate, since after  reorganization each of the States will be  large enough to be divided into a number  of constituencies and will not permit of  being grouped together with other States  for this purpose or being "formed" into a  single territorial constituency. Clause (2)  or Article 81 and Article 82 will require to  be combined and revised in order to make  suitable provision for Union territories.  Instead of amending the articles  piecemeal, it is proposed to revise and  simplify them. Incidentally, it is proposed  in clause (1)(b) of the revised Article 81 to  fix a maximum for the total number of  representatives that may be assigned to  the Union territories by Parliament."

By the Constitution (Seventh Amendment) Act 1951, the  words "specified in Part A or Part B of the First Schedule" as  used in Article 80 (4) were deleted. By the same amendment,  the words "States specified in Part C of the First Schedule" in  Article 80(5), were substituted by the words "Union  Territories."  The States were being reorganized. The categorization of  the States as Part A, Part B or Part C States was being  abolished.  Some of the States earlier classified as Part C  States were now being named as "Union Territories".  Since  the allocation of seats in the Council of States as given in the  Fourth Schedule must necessarily correspond to the States  (and Union Territories) mentioned in the First Schedule, in  view of the requirement of Article 1 (2) and Article 4, the  provisions contained in Article 80 had to undergo  consequential amendments.  Noticeably, the word "each" had appeared only in Article  80(4) in the context of the representatives of the States. The  expression "representatives of the States" appears first in  Article 80(1) and then in Article 80(2) so as to specify the  number (to be elected) and the allocation of seats (to be  specified in the Fourth Schedule) respectively.  In neither  clause the word "State" is qualified by the word "each".  Since  sub-Article (4) and sub-Article (5) were meant to indicate the  manner of election by States of different categories, they were  created as separate provisions.  If the word "each" had the  significance attributed during arguments by the writ  petitioners, it would have occurred not only in sub-Article (4)  in the context of Part A and Part B States, but also in sub- Article (5) in the context of Part C States, inasmuch as States  of all categories represented different units of the Union of  India.   In the above view, the employment of the word "each"  preceding the word "State", in the context of representation in

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the Council of States, is meant only to underscore the fact that  the Legislative Assembly of each State was intended to be a  separate electoral college for returning a member to fill in the  seat allocated to the particular State as specified in the Fourth  Schedule.  Nothing more and nothing less.  This is more so, in  view of the fact that the expression "representatives of the  States" had already occurred twice earlier in the preceding  clauses of the same Article.  The word "each" was not required  to be used in the context of Part C States (now Union  territories), in Article 80 (5), as originally provided or even later  amended, since the manner of representation of such units of  the Union of India was left to be prescribed by the Parliament  and since each such unit was not intended at that time to be  provided with its own Legislative Assembly. In the above view, the argument that the use of the word  "each" in Article 80 (4) gives to the House the character of a  body representing the States, does not appeal to us.    Person to have representative character before being  elected

It is the argument of the petitioners that the word  "representative" in the context of democracy requires two  things; i.e. (a) capacity to represent and (b) authority to  represent.  They submit that only a member of a class can  represent the class in a system of self-governance. It has been argued 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" as  appearing in Article 80 (4) need to be interpreted in a manner  consistent with the basic structure of the Constitution keeping  in mind the concept of democracy, i.e. system of self- governance. Reliance has been placed in this context once  again on Sub-Committee on Judicial Accountability v. UOI  & Ors. (supra); P.V. Narasimha Rao v. State (CBI, SPF)  (supra); and S.R. Bommai v. UOI (supra). The first two cases have already been taken note of.   Regarding S.R. Bommai, the following observations, at page  118, have been referred to : - "Thus the federal principle, social  pluralism and pluralist democracy which  form the basic structure of our  Constitution demand that the judicial  review of the Proclamation issued under  Article 356(1) is not only an imperative  necessity but is a stringent duty and the  exercise of power under the said  provision is confined strictly for the  purpose and to the circumstances  mentioned therein and for none else. It  also requires that the material on the  basis of which the power is exercised is  scrutinised circumspectly."

The argument is that the word "representative" in the  context of parliamentary democracy requires both capacity to  represent and authority to represent. Only a member of a class  can represent the class in a system of self-governance. It  follows that unless a person belongs to a State he will not have  the capacity to represent the people of the State or the State. A  person belongs to a State either by birth and residence or by  domicile or ordinary residence in the State. The concept of "State" implies not only territory but also  the people inhabiting the territory. Article 1 says that India  shall be a Union of States. Therefore, it is the submission of

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the petitioners, the expression "representatives of each State"  in Article 80 (4) refers to persons who represent the people of  each State and only a person who belongs to the State or who  is one among the people of the State will have the capacity to  represent the State and not a person belonging to another  State. It is further argued by the petitioners that the very fact  that Article 80 (4) provides for election by the elected members  of the Legislative Assembly of the State coupled with the fact  that in terms of Article 170, members of the Legislative  Assembly shall be those chosen by direct election from  territorial constituencies in the State and the further  requirement that each one of them is required to be an elector  for any Assembly constituency in the State in terms of Section  5 (c) of the RP Act, 1951 shows that Members of the Council of  States representing a State shall have the qualifications  prescribed for Members of the Legislative Assembly. Both are  representatives of the people; while Members of Legislative  Assemblies (MLAs) are directly elected, members of the  Council of States are indirectly elected by the people of the  State through their MLAs. Section 5 (c) of the RP Act, 1951 requires a person to be  an elector for an Assembly constituency in the State to be  eligible to contest for a seat in the Legislative Assembly. It is  the argument of the petitioners that the capacity to represent  arises from being a registered voter for any Assembly  constituency in the State. Therefore, to be able to represent a  State, it is necessary that the person concerned shall be a  registered voter in the State. Section 19 of the RP Act, 1950 lays down the  requirement of being "ordinarily resident in a constituency" for  being entitled to be registered in the electoral roll for that  constituency. Section 20 gives the meaning of "ordinarily  resident". It has been argued by Mr. Nariman that an elected  member to the Council of States does not "represent" the State  only because he is elected by the State Assembly. In order to  represent the State (as distinct from representing the State  Assembly) in the Council of States, he must first be the  representative of the State under Article 80(4) before the  legislative body elects him. He buttressed this plea by seeking  to highlight that in the said sub-Article, the expression  "representatives of each State in the Council of States"  precedes the prescription about mode of election (the system  of proportional representation by means of the single  transferable vote). The Counsel further argued that the expression  "representatives of the States", as used in Article 80 (1) (b) and  Article 80 (2) and the expression "representatives of each  State", as employed in Article 80 (4) have been left to be  defined by Parliament "by law" made under Article 84 (c)  which requires Parliament to prescribe as to what "such other  qualifications" a person must possess in order to qualify to be  chosen as a member of parliament, that is qualifications other  than those given in Article 84 (a) & (b) that relate to citizenship  of India, oath or affirmation inter alia of faithfulness and  allegiance to the Constitution and the prescription about  minimum age. It has been contended that Article 80 (4), by using the  expression "representatives of each State" emphasizes that  person who is elected must first be qualified as a  representative of the State in question. If the qualification was  meant to originate from his being merely elected by any  particular State Assembly, the clause would have read: -  "The elected members of the Legislative

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Assembly of each State shall elect their  representative in the Council of States in  accordance with the system of  proportional representation by means of a  single transferable vote."

The Counsel has submitted that unlike Article 81, which  does not stipulate that a person elected to the House of the  People shall be from a territorial constituency in a particular  State so as to be the representative of such State in the House  of the People, 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. Mr. Nariman referred to the term "elector" which has  been defined in Section 2 (e) of the RP Act 1951, in relation to  constituency, as a person whose name was entered in the  electoral rolls of the constituency for the time being in force.  He also pointed out that under Section 19 of the RP Act 1950,  every person who is not less than 18 years of age on the  qualifying date and is "ordinarily resident" in a constituency  only is entitled to be registered in the electoral roll of that  constituency. He submitted that provisions of RP Act, 1950 and 1951  were in the nature of "further qualifications for membership",  as clarified through Notes on Clauses on what was enacted as  Section 3 of the RP Act, 1951, as published in the Gazette of  India, December 23, 1950-Part II-Sec.2, which reads as  follows:- "Clauses 3 to 6   - Articles 84 and 173 of  the Constitution have laid down certain  qualifications for membership of  Parliament and of the State Legislatures  and have left it to Parliament to prescribe  such further qualifications as it may  consider necessary.  Clauses 3 to 6 seek  to prescribe these further qualifications  for membership.  (Emphasis supplied)

Section 4 of the RP Act, 1951 prescribes the  qualifications for membership of the House of the People.  The  said provision generally requires a person seeking to fill a seat  in the House of the People to be "an elector for any  Parliamentary constituency".  There was thus a material  difference between the qualification of domicile within the  particular State as prescribed for the Council of States and the  qualification of domicile within any Parliamentary  constituency in India as prescribed for the House of the  People.  This was subject matter of debate in the provisional  Parliament on 11th May 1951, at the time of consideration of  the Bill, which would later take the shape of RP Act, 1951. Mr.  Nariman referred to the debate in Parliament on Section 3 of  the RP Act 1951.     It appears that in the course of the said debate it came  to be pointed out as incongruous as to why a candidate to the  Council of States should be a resident of the State concerned  while a candidate to the House of the People need only be a  resident in any Parliamentary constituency in the country. The  record of Parliamentary debates would show that Dr.  Ambedkar had explained the distinction referring to the  requirement of residence within the State concerned on  account of the House in question being the Council of States  and the absence of such requirement of residence within the

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State concerned for the other House because it was the House  of the People.        It is the submission of the learned counsel that the  Parliamentary debates on the justification for distinction is  clearly indicative of the reason why the representative  character of the member elected to the Council of States was  defined, it being that the election was to the Council of States  and not to the House of the People; that is to say that a person  residing or working in Area "A", therefore, could not represent  Area "B", or for that matter any other place. It is the contention of the Counsel that the impugned  amendment sets at naught the representative character of the  person elected, as grafted in the provision amended in the  form of his connection with the State he represents in the  Council of States, leaving it undefined either with reference to  "residence" (in the past or in the present), or to place of birth,  or to performance of public duties in the State whose  Assembly elects him to the Council of States. Before proceeding further, we would like to refer to  certain observations of a Constitution bench of this Court in  G. Narayanaswami v. G. Pannerselvam & Ors. [(1972) 3  SCC 717], appearing in Paragraph 4 which read as under: - "Authorities are certainly not wanting  which indicate that courts should  interpret in a broad and generous spirit  the document which contains the  fundamental law of the land or the basic  principles of its Government.  Nevertheless, the rule of "plain meaning"  or "literal" interpretation, described in  Maxwell’s Interpretation of Statutes as  "the primary rule", could not be  altogether abandoned today in  interpreting any document. Indeed, we  find Lord Evershed, M.R., saying: "The  length and detail of modern legislation,  has undoubtedly reinforced the claim of  literal construction as the only safe rule".  (See: Maxwell on Interpretation of  Statutes, 12th Edn., p. 28.) It may be that  the great mass of modern legislation, a  large part of which consists of statutory  rules, makes some departure from the  literal rule of interpretation more easily  justifiable today than it was in the past.  But, the object of interpretation and of  "construction" (which may be broader  than "interpretation") is to discover the  intention of the law-makers in every case  (See: Crawford on Statutory Construction,  1940 Edn., paragraph 157, pp. 240-42).  This object can, obviously, be best  achieved by first looking at the language  used in the relevant provisions. Other  methods of extracting the meaning can be  resorted to only if the language used is  contradictory, ambiguous, or leads really  to absurd results. This is an elementary  and basic rule of interpretation as well as  of construction processes which, from the  point of view of principles applied,  coalesce and converge towards the  common purpose of both which is to get  at the real sense and meaning, so far as it  may be reasonably possible to do this, of

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what is found laid down. The provisions  whose meaning is under consideration  have, therefore to be examined before  applying any method of construction at  all. \005\005\005." We endorse and reiterate the view taken in the above  quoted paragraph of the Judgment. It may be desirable to give  a broad and generous construction to the Constitutional  provisions, but while doing so the rule of "plain meaning" or  "literal" interpretation, which remains "the primary rule", has  also to be kept in mind. In fact the rule of "literal construction"  is the safe rule unless the language used is contradictory,  ambiguous, or leads really to absurd results.  Regarding the words in Article 80(4) of the Constitution,  viz., "the representatives of each State", as already stated, we  are not impressed with the submission that it is inherent in  the expression "representative", that the person, in order to be  a representative, must first necessarily be an elector in the  State.  If this concept were to be stretched further, it might  also require birth in the particular State, or owning or having  rented property or belonging to the majority caste, etc. of that  State.  Needless to mention, no such qualification can be  added to say that only an elector of that State can represent  that State. The "representative" of the State is the person  chosen by the electors who can be any person who, in the  opinion of the electors, is fit to represent them. There is  absolutely no basis for the contention that a person who is an  elector in the State concerned is more "representative" in  character than one who is not. We do not find any contradiction, ambiguity, or absurdity  in the provisions of the law as a result of the impugned  amendment. Even while construing the provisions of the  Constitution and the RP Acts in the broadest or most generous  manner, the rule of "plain meaning" or "literal" interpretation  compels us not to accept the contentions of the petitioners. Upon being given their plain meaning, the words  "representatives of the States" in Article 80 (1) (b), Article 80  (2) and Article 80 (4) must be interpreted to connote persons  who are elected to represent the State in the Council of States.  It is the election that makes the person elected the  "representative". In order to be eligible to be elected to the  Council of States, a person need not be a representative of the  State before hand.  It is only when he is elected to represent  the State that he becomes a representative of the State. Those  who are elected to represent the State by the Electoral College,  which for present purposes means the elected members of the  legislative assembly of the State, are necessarily the  "representatives" of the State.  Article 84 applies to the Council of States as much as it  does to the House of the people. This Article begins with the  words: -  "A person shall not be qualified to be  chosen to fill a seat in Parliament  unless\005\005\005."

Thus, every member of Parliament, be one "nominated by  the President" under Article 80 (1) (a), or "a representative of  the State" elected under Article 80 (1) (b) read with Article 80  (4) & (5), or a "member" of the House of the People elected  under Article 81, fills a seat in Parliament.  A Constitution Bench of this Court in Shri V.V. Giri v.  Dippala Suri Dora & Ors. [(1960) 1 SCR 426: AIR 1959 SC  1318] had while construing the expressions "seat’ and "to fill a  seat" as used singly or together in Articles 81(2) (b), 84, 101(2),  and 330 held as under: -

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"\005\005.. some articles of the Constitution  and some sections of the Act refer to  seats in connection with election to the  House of the People. For instance, when  Article 81(2)(b) provides for the same ratio  throughout the State between the  population of each constituency and the  number of seats allotted to it, it does refer  to seats, but in the context the use of the  word "seats" was inevitable. Similarly  Article 84 which lays down the  qualification for the members of  parliament begins by saying that a  person shall not be qualified to be chosen  "to fill a seat" in Parliament unless he  satisfies the tests prescribed by its  clauses (a), (b) and (c). Here again the  expression "to fill a seat" had to be used  in the context. The same comment can be  made about the use of the word "seat" in  Articles 101(2) and in 330. There is no  doubt that when a candidate is duly  elected from any constituency to the  House of the People he fills a seat in the  House as an elected representative of the  said constituency; and so the expression  "filling the seat" is naturally used  whenever the context so requires." (emphasis supplied)

On the same analogy, it must be said that when a  candidate is elected by the electorate comprising of the  members of the Legislative Assembly of the State to represent  the State in the Council of States, he is elected and chosen as  "a representative of the State". The words "representative of  the State" do not in any manner connote that the  representative must also be an elector or a voter registered in  the State itself.   It is the status acquired upon election as a member of  the legislature that bestows upon the person the character of a  "representative". This has been the view taken by this Court  earlier also. In B.R. Kapur v. State of T.N. & Anr. [(2001) 7  SCC 231], a Constitution Bench of this Court was considering  the questions relating to entitlement of a person, not a  member of the legislature, to be appointed as a Chief Minister.  On the basis of construction of various provisions of the  Constitution, in particular Articles 163 (1), 164 (1) (2) & (4),  173, 177 and 191, this Court held at page 289: - "There is necessarily implicit in these  provisions the requirement that a  Minister must be a member of the  Legislative Assembly and thus  representative of and accountable to the  people of the State."

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 possesses.  This is further clear from the scheme of the Constitution as is  evident from Article 171 (3) of the Constitution that provides  for the composition of the Legislative Council, which is a  House at the level of the States, akin to the Council of States

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at the level of the Union.  Members of the municipalities and boards, graduates,  teachers are required under Article 171 to elect a certain  percentage of members of the Legislative Council. It is not  necessary that the person elected must either be a member of  the municipal board or a graduate or himself a teacher.  The  electorate can elect whoever in their wisdom is considered  most suited to be a representative of theirs.  In G. Narayanaswami’s case (supra), a Constitution  Bench of this Court was considering the provisions contained  in Articles 171 & 173 and Sections 5 & 6 of the RP Act, 1951.  The following observations made in Paragraph 7 of the  Judgment are of relevance here: - "The plain and ordinary meaning of the  term "electorate" is confined to the body  of persons who elect. It does not contain,  within its ambit, the extended notion of a  body of persons electing representatives  "from amongst themselves". Thus, the  use of the term "electorate", in Article  171(3) of our Constitution, could not, by  itself, impose a limit upon the field of  choice of members of the electorate by  requiring that the person to be chosen  must also be a member of the electorate."

Undoubtedly, Section 6 of the RP Act, 1951 continues to  require domicile within the State as a necessary qualification  for a person seeking to be elected as a member of Legislative  Assembly or the Legislative Council of the State. But, in view  of the above law laid down by this Court, from which we do  not find any good reason to make a departure in the case at  hand, there is no merit in the plea that the "representative of  the State" elected by the legislative assembly of the State must  also be an ordinary resident of the State just because the  electorate that is electing him are required by law to be so. 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 13D, 14, 15,  17, 18, 19 and 20.  Electoral rolls for purposes of elections  governed by the RP Acts are prepared assembly-constituency  wise under Section 15. Section 13D relates to the Electoral  rolls for Parliamentary constituencies and renders the  electoral rolls for all assembly constituencies comprised within  the parliamentary constituency put together as the electoral  roll for such parliamentary constituency. Electoral rolls are  prepared basically for assembly constituencies and revised  year-wise. A conjoint reading of Sections 17, 18, 19 & 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.  In Pampakavi Rayappa Belagali v. B.D. Jatti &  Others [1971 (2) SCR 611], the election of the first  respondent to the Mysore Legislative Assembly had been  challenged, amongst others, on the ground that he had ceased  to be a person "ordinarily resident" within the Jamkhandi  constituency and thus questioning the validity of entry of his  name on the electoral roll for that constituency.  The High  Court had rejected the election petition including on the  aforesaid ground. This Court while dismissing the appeal  against the judgment of the High Court observed, inter alia,  that the conditions of registration as an elector in the electoral  roll, as provided in Section 19 of the RP Act, 1950 includes the  condition that the person must be "ordinarily resident" in the

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constituency and that the meaning of the expression  "ordinarily resident" is given in Section 20 and further that  "the conditions about being ordinarily resident in a  constituency for the purpose of registration are meant for that  purpose alone\005\005.".   The qualification of "ordinarily resident" is provided for  registration as a voter in a general election for deciding the  place of voting 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. The expression "representative of each State" in Article  80 (4) of the Constitution is not a qualification and cannot be  read as a condition precedent for being elected. The  Constitution has dealt with "qualifications" exclusively in  Article 84 of the Constitution, as would also be clear from the  marginal note besides the contents of the provision itself. We agree with the submission that by definition, 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 Houses of  Parliament.  A person becomes a representative only after he is  chosen in the prescribed manner.  He is not a representative  earlier. At best, he can claim to be called a candidate or a  potential representative. The theory that before he becomes a  representative he should have some nexus other than one  prescribed by the law in force is not palatable and not  supported by any law or view taken in any case. Panchayati Raj Amendment \026 territorial link  Mr. Nariman has submitted that there is a constitutional  recognition of the concept of territorial link of the members of  the Council of States (as representing the particular State in  the Council of States). He buttressed this contention by referring to the 73rd and  74th Constitutional Amendment Acts 1992 which introduced  Part IX and Part IX-A to provide that there shall be constituted  in every State, Panchayats (at village, intermediary and district  levels) and Municipalities as institutions of self government  (Article 243B and Article 243Q). Article 243C (Composition of  Panchayats), through clauses (c) & (d) of sub-Article (3),  authorizes the Legislature of a State, by law, to provide for the  representation "of the members of the House of the People and  the members of the Legislative Assembly of the State  representing constituencies which comprise wholly or partly a  Panchayat area at a level other than the village level in such  Panchayat" and "of the members of the Council of States and  the members of the Legislative Council of State, where they are  registered as electors within" a Panchayat area at the  intermediate or district level, as the case may be.  Similarly, under Article 243R (Composition of  Municipalities), through sub-Article (2), the Legislature of a  State has been vested with the power to, by law, provide for  the representation in a municipality of "the members of the  House of the People and the members of the Legislative  Assembly of the State representing constituencies which  comprise wholly or partly the municipal area" and "the  members of the Council of States and the members of the  Legislative Council of the State registered as the electors  within the municipal area". According to Mr. Nariman, the constitutional recognition  given to the territorial link between the member of the Council  of States (as representing the particular State in the Council of  States) and his position as a registered elector in any  Panchayat or Municipal area in that State for purposes of local

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bodies reinforced the plea that the insistence on local  residence within the particular State for representatives of the  States in the Council of States was part of the Constitutional  scheme. The argument is found, on close scrutiny, to be devoid of  merit for several reasons.  First and foremost, the provisions mentioned above are  not exceptional in relation to a member of the Council of  States on account of his position as a registered elector in any  Panchayat or Municipal area in that State for purposes of local  bodies. They equally apply to the members of the House of the  People and the Legislative Assemblies (as indeed, the  Legislative Councils) of the State concerned.  Secondly, the above provisions are part of the scheme of  local self-government engrafted in the Constitution, the object  sought to be achieved thereby being to provide a linkage  between the local bodies and the legislature at the State and  Union levels.  The purpose sought to be achieved is to give to  the Members of State Legislature and the Parliament access to  the grass-root level, equipping them with knowledge about  local problems, issues, opinions and aspirations, thereby  strengthening democracy. Then, the enabling provisions may not have uniform  application. Their effect would depend on the provisions  enacted or to be enacted by the respective State Legislatures  for each State. The enabling provisions, the import of which is  reflected in phraseology extracted above, themselves make it  abundantly clear that the claim of the members of the State or  Union Legislature for representation in the Panchayat or  municipality depends on various factors that may or may not  exist vis-‘-vis each such member. To elaborate, it can be said  that if there can be a member of the Council of States  registered as an elector within a Panchayat area or municipal  area there can also be a member of the Council of States not  so registered as an elector within a Panchayat area or  municipal area. Moreover, the relevant clauses do not apply  only to elected members of the Council of States. Thus, even a  nominated member of the Council of States qualifies to be a  representative in the Panchayat or a municipality if he fulfills  the qualification prescribed. So, a conclusion in respect of the  elected "representatives of the State" in the Council of States  cannot be reached on such basis.   Further, these provisions generally provide for the  qualifications of various categories of persons, which happen  to include the members of the Council of States, to be  representatives in a Panchayat or municipality, and share in  local self governance. Since the members of the Council of  States were one of the several sources being tapped for the  purpose of providing for representation of different interest  groups in the deliberative wing at the local level, it was  incumbent to lay down some method of selection.  Last, but not the least, the provisions that have been  referred are Constitutional provisions. Even on the premise  that in enacting them the factor of registration as elector  within a particular Panchayat or municipal area was  considered important in relation to the members of the  Council of States so as to give them the additional  responsibility of representation in the local Panchayat or  municipality, it cannot be said that these provisions add the  requirement of domicile to the qualifications for membership  in the Council of States. There is no such express  Constitutional provision prescribing such additional  qualification. Thus, the argument based on the  73rd and 74th  Constitutional Amendment Acts 1992 which introduced Part

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IX and Part IX-A to provide for Panchayats and Municipalities  as institutions of self government is of no avail to the  petitioners.  Concept of Residence to change with passage of time  

It is the argument of the Writ Petitioners that there must  be a rational nexus between the State and its representatives  in the Council of States. Such nexus, as per the submissions,  could be found only in the requirement of residence in the  State for a minimum specified period. To be able to "represent"  the State, it has been urged, one has to be fully conversant  with the language, current problems, needs, aspirations and  interests of the people of the State and the concerns of the  State Government. It is not difficult to visualize a conflict  between duty and interest in the case of members belonging to  one State being elected from another State on issues upon  which the two States are at loggerheads. The contention of the petitioners is that the provision  contained in Section 3 of the RP Act, 1951, prior to the  impugned amendment, provided for a reasonable nexus  between a member of the Council of States and the State from  which he is elected, viz. the nexus on account of domicile.  It  has been argued that the amendment doing away with the  said provision i.e. requirement of residence in the State, has  the effect of snapping the rational nexus necessary to fulfill  the object of representation in the Council of States having  regard to the federal character of the Indian Union. Mr. Nariman, in the course of his arguments, has  referred to the arrangement in Section 3 of the RP Act 1951,  as originally enacted, as the constitutional scheme. On this  premise, he would argue that Parliament could make a  departure from this scheme only by providing some other  criteria or link for determining the representative capacity of a  prospective member of the Council of States. He illustrated  this by submitting that the test of "ordinary residence", as  inherent in Section 3 of the 1951 Act before its amendment,  could be modified by Parliament only so as to provide some  other characteristic of effective representation, viz. (i) born in  the State, (ii) having property in the State, (iii) philanthropic or  charitable works done in the State, (iv) education in the State,  (v) having worked for some period of time in the State, or some  such other criteria.  It was also submitted by some petitioners that the  impugned amendment in Section 3 of the RP Act, 1951 has  opened the floodgates of corrupt practices in the matter of  allotting seats to the candidates of choice of powers that be in  the political parties and their election is ensured by  maneuvers or manipulations.  The above argument is based upon the intrinsic concept  of the word ’representative’.  This word ’representative’ has no  definite meaning.  Like ’residence’, ’representative’ is a  malleable concept.  In some federal countries, the Upper  House has been designed to reflect the views or interests of the  constituent States and to provide a means to protect the  States against improper federal laws.  In the United States, the  Senate is composed on federal principles.  Each State,  irrespective of its size or population, sends two Senators and,  thus, has an equality of representation in the House.  On the  other hand, the House of Representatives is constituted on  population basis.  In US the Senators are elected by the  population vote.  The Senate is a continuing body and one- third of its members retire every two years. In Canada, the Senate is composed on a  different  principle.  Each province is assigned a fixed number of  Senators, though unequal.  The allegiance of the Senators in

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Canada is usually to the party which appoints them. Rajya Sabha resembles the American Senate insofar as it  is a continuing body.  Rajya Sabha, however, differs from the  US Senate insofar as its members are not elected directly by  the States and there is no equality of representation of the  States.  Rajya Sabha resembles the Australian Senate insofar  as both are based on the principle of rotation. The point which we would like to emphasize here is that  even in countries where strict federalism exists, with the  passage of time, the original role of the Senate of guarding  interests of the States as political units has largely  disappeared.  With globalization, the US Senate now functions  as a national institution rather than as a champion of local  interests.  This transformation has taken place in US due to  several factors such as direct election of Senators by the  people of a State, development of strong political parties  advocating national programmes and development of national  integration, etc. Similarly, in India, after 1990, due to relaxation of  central economic control, the conceptual and theoretical  framework of federalism has undergone a sea-change.  The  concepts of the words ’residence’ and ’representative’ are not  fixed concepts, therefore, they have to change with time.  The  constitutional framers have kept that flexibility in mind, they  have left it to the Parliament to decide the qualification for  membership of the Parliament and, while deciding the  qualification, the Parliament has to take into account the  contextual scenario.  There cannot be one uniform, consistent  and internal definition or connotation of these concepts.   These concepts undergo changes with the passage of time.   They cannot be decided etymologically by reference to  dictionaries. Sub-Section (1) of Section 20 of the RP Act, 1950 clarifies  that mere ownership or possession of a dwelling house at a  certain place does not necessarily mean that a person is  ordinarily residing there. Sub-Section (2) declares that  incarceration as a prisoner in jail or confinement as a patient  of mental illness at a certain place does not make that place  the ordinary residence of the individual. On the other hand, some of the sub-Sections collectively  indicate that temporary absence on account of certain  specified exigencies cannot disrupt the ordinary resident  status of an individual. Sub-Section (1A) provides that temporary absence of a  person from a particular place does not result in cessation of  his ordinary residence there. Sub-Sections (1B) (3) and (4) protect the ordinary  resident character of an individual vis-‘-vis the place where he  would be ordinarily residing but for official engagements. Sub- Section (1B) takes care of legislators’ absence from their  respective constituencies in connection with responsibilities of  the office they hold. Sub-Sections (3) and (4) pertain to  compulsions of the service (in Armed forces or police or foreign  posting in service under Government of India) to be at a place  other than the one where one ordinarily resides. Sub-Sections (5) and (6) of Section 20 of RP Act, 1950  render the declaration, in prescribed form, of a person about  the place of his (and that of his spouse) ordinary residence as  sufficient proof, though subject to determination, should a  question be raised in such regard, under rules to be framed  under sub-Section (7). Lexicon refers to Cicutti v. Suffolk Country Council,  [(1980) 3 All. ER 689], to denote that the word "ordinarily" is  primarily directed not to duration but to purpose.  In this  sense the question is not so much where the person is to be

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found "ordinarily", in the sense of usually or habitually and  with some degree of continuity, but whether the quality of  residence is "ordinary" and general, rather than merely for  some special or limited purpose. The words "ordinarily" and "resident" have been used  together in other statutory provisions as well and as per the  Law Lexicon they have been construed as not to require that  the person should be one who is always resident or carries on  business in the particular place. The expression coined by joining the two words has to be  interpreted with reference to the point of time requisite for the  purposes of the provision, in the case of Section 20 of RP Act,  1950 it being the date on which a person seeks to be  registered as an elector in a particular constituency. Thus, residence is a concept that may also be transitory.   Even when qualified by the word "ordinarily" the word  "resident" would not result in construction having the effect of  a requirement of the person using a particular place for  dwelling always or on permanent uninterrupted basis. Thus  understood, even the requirement of a person being "ordinarily  resident" at a particular place is incapable of ensuring nexus  between him and the place in question. The nexus between the candidate and the State from  which he gets elected to fill a seat in the Council of States is  provided by the perception and vote of the elected Members of  the Legislative Assembly who consider him (necessarily an  Indian Citizen) as best qualified to further the interests of the  State in Parliament. When voting for a candidate in an election, perception of  his skills as a legislator, his knowledge of State affairs, his  services to the constituency he seeks to represent and the  satisfaction or confidence in having him as the representative  of the electorate are enough considerations or qualifications.   These considerations undoubtedly are certainly of more weight  than transitory or often illusory concept of "residence". This Court would refrain from passing comment on the  argument of the Union of India that it is a matter of common  knowledge that, before the impugned amendment was brought  about, in the anxiety to secure good candidates, the  requirement of residence was being bypassed usually by  illegitimate subterfuges like being compelled to make false  declarations about their real residence or further that the  experience had shown that the qualification of domicile was  proving to be an obstacle in getting the right members into the  Council. Suffice it to say here that our electoral system needs to  be rendered free from all known vices and so there is no  reason why Parliament should be denied the opportunity to  bring in such legislation as is deemed by it, in its wisdom, as  would plug the possible holes of abuse, for which Parliament  has the necessary legislative competence. Article 80 (4) is not being correctly read by the petitioners  when they make the submissions that have been noticed  above. The suggestion that the expression ’representative of  each State’ implies a condition of residence or other link with  the States to be represented ignores the importance of the  expression "in" preceding the expression "the Council of  States". Article 80 (4) does not say that representative of each  State to be elected must first be a representative of the State  before election. To read this requirement into Article 80 (4)  would do violence to the words and would be grammatically  incorrect. A grammatical clause analysis of Article 80 (4) shows  that it is nothing more and nothing less than what is reflected

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if it were to be worded thus: - "The elected members of the Legislative  Assembly of the State shall elect the  representatives of each State in the  Council of States in accordance with the  system of proportional representation by  means of a single transferable vote".

       In the provision contained in Article 80 (4), thus put in  the active voice, the emphasis is on ’who elects’. In the existing  passive form, the emphasis is on how the representatives  would be elected. The result, either way, is the same. Article  80 (4) deals with the manner of election and nothing more.         Therefore, the words "representative of each State" only  refers to the members and do not import any further concept  or requirement of residence in the State. Absence of Justification \026 Objects & Reasons Another submission urged is that the Statement of  Objects and Reasons for the Bill which brought about the  amendment itself shows the absence of justification for doing  away with the will of the Parliament as earlier reflected in  original Section 3 of the RP Act 1951, which was in  consonance with the scheme of the Constitution. The  Statement of Objects and Reasons for the Bill mentioned that  "a precise definition for ’ordinarily resident’ was very difficult"  and that after the matter was "examined in depth by the  Government" it had been decided to do away with the  requirement of residence in a particular State or Union  Territory for contesting election to the Council of States from  that State or Union Territory, and further that there were  numerous instances where persons who were not normally  residing in the State had got themselves registered as voters in  such State simply to contest the elections to the Council of  States.  The petitioners point out that the definition of "ordinarily  resident" contained in Sections 19 and 20 of Representation of  the People Act, 1950 remain unamended. As per their  submissions, if persons actually not residing in a particular  State have wrongly got themselves registered as voters in such  State or there was difficulty in applying the words ’ordinarily  resident’, the statute afforded the remedy in Section 20 (7) of  Representation of the People Act, 1950, giving authority to the  Central Government to frame rules, in consultation with the  Election Commission, to determine the questions arising.   Besides, it has been argued, the decision of the Election  Officer in above regard, under the existing law, is rendered  final and cannot be raised again in an Election Petition, as  held by a Constitution Bench in Hari Prasad Mulshanker  Trivedi v. V.B. Raju & Ors. [1974 (3) SCC 415]. It has been argued that the reasons given in the  Statement of Objects and Reasons for the Amendment Act do  not provide any rational justification for the impugned  amendment. The problem that some persons, though not  ordinarily resident in the State, yet manage to get themselves  registered as voters in a Parliamentary Constituency of the  State and get elected to the Council of States, needs to be  tackled by making more effective the provision so as to prevent  such registration, if any, and for cancellation of such  registration and deletion of their names from the voters list.  This problem, according to the petitioners, requires a different  treatment but not by striking at the root of meaningful and  effective representation of the States in the Council of States  by amending Section 3.  The petitioners’ contention, thus, is  that the amended Section 3 is irrational, arbitrary and  unconstitutional.

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The petitioners further argue 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. The Counter Affidavit of the Union of India states that the  members of Legislative Assemblies are in the best position to  decide who would best represent their States’ interest in the  Rajya Sabha. The petitioners submit that this is a doubtful  proposition having regard to what the Ethics Committee of the  Council of States said in its report about large sums of money  being the motivating factor in electing members of the Council  of States. The petitioners also lament that the well considered view  expressed by an eminent body like the National Commission  on Working of the Constitution has been unreasonably  brushed aside.  The Commission in Paragraph 5.11.5 of its  report did express its view that the Parliamentary legislation  that had been initiated seeking to do away with the domiciliary  qualification for being chosen as a representative of any State  or Union territory in the Council of States would affect "the  basic federal character of the Council of States" and that in  order to maintain the said basic federal character of the said  House, "the domiciliary requirement for eligibility to contest  elections to Rajya Sabha from the concerned State is  essential".  Union of India has stated that it respectfully differs  from the views expressed by the Commission. We need not go into the question whether the views of the  National Commission on Working of the Constitution were  supported or not by elaborate examination of the issue in all of  its dimensions, since the said views are not binding on the  Government.  The role of the Commission was more in the  nature of being advisory.  We are not impressed with the other  submissions, having already rejected the plea based on the  federal character of polity.  The views of the Commission were  founded on that premise.   In Hari Prasad Mulshanker Trivedi v. V.B. Raju  (supra), relied upon by the petitioners, this Court was  concerned with the question whether the election of  respondent numbers 4 & 5 as members of the Council of  States from the State of Gujarat which was challenged by way  of an election petition, was void on the ground that they were  not ordinarily resident in the area covered by any  parliamentary constituency in the State of Gujarat and that  their names had been illegally entered in the electoral rolls of  the respective constituencies in Gujarat and as they were not  ’electors’ within the meaning of Section 2 (1)(e) of RP Act,  1951, they were not eligible to become candidates in the  election.  While dealing with the contention about jurisdiction of  the Court to decide whether the entries in the electoral roll  regarding the respondents were valid or not, this Court  observed: - "The requirement of ordinary residence as  a condition for registration in the  electoral rolls is one created by  Parliament by Section 19 of the 1950 Act,  and as we said, we see no reason why  Parliament should have no power to  entrust to an authority other than a court  or a tribunal trying an election petition  the exclusive power to decide the matter  finally. We have already referred to the  observation of this Court in Kabul Singh  case that Sections 14 to 24 of the 1950

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Act are integrated provisions which form  a complete code in the matter of  preparation and maintenance of electoral  rolls. Section 30 of that Act makes it clear  that civil courts have no power to  adjudicate the question. In these  circumstances we do not think that it  would be incongruous to infer an implied  ouster of the jurisdiction of the Court  trying an election petition to go into the  question. That inference is strengthened  by the fact that under Section 100(1) (d)  (iv) of the 1951 Act the result of the  election must have been materially  affected by non-compliance with the  provisions of the Constitution or of that  Act or of the rules, orders made under  that Act in order that High Court may  declare an election to be void. Non- compliance with the provisions of Section  19 of the 1950 Act cannot furnish a  ground for declaring an election void  under that clause."

       While disposing off the appeal, the Court concluded thus: "We think that the intention of the  Parliament to oust the jurisdiction of the  Court trying an election petition to go into  the question whether a person is  ordinarily resident in the constituency in  the electoral roll of which his name is  entered is manifest from the scheme of  1950 and the 1951 Acts. It would defeat  the object of the 1950 Act if the question  whether a person was ordinarily resident  in a constituency were to be tried afresh  in a court or tribunal, trying an election  petition."

The above observations do not advance the case of the  petitioners in any manner.  There may be a separate  machinery available under the RP Act, 1950 to question and  inquire into the correctness of the entry of the name of an  individual in the electoral roll of a particular constituency, a  remedy distinct from that of an election petition to challenge  the election of the candidate declared to have been returned in  an election, but this fact cannot lead to the conclusion, by any  stretch of reasoning, that the removal of the domiciliary  requirement from the qualifications for membership of  Parliament is opposed to law or common sense.   Union of India would refer to the Registration of Electoral  Rules, 1960 as the rules framed under Section 20 of the RP  Act, 1950.  The said rules, generally speaking, provide for the  form and languages of the electoral rolls; preparation thereof  in parts; order of names; forms in which declaration about the  claim and fulfillment of qualification is required to be made;  information to be supplied by occupants of dwelling houses;  access to the registers; publication of draft electoral rolls and  publicity to be given thereto; lodging of claims and objection  with manner and forms prescribed in that regard; procedure  for process, rejection or acceptance of claims and objections  after or without inquiry; inclusion or deletion of names; final  publication of electoral rolls; appeals or revisions against the  orders passed; identity cards etc.  We have not been able to  find any specific provision in these rules as could be held to be

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a guide to the concerned authorities for determining in a  particular fact situation if an individual is, or is not,  "ordinarily resident" of a particular place at a particular point  of time.   We must hasten to add that we are not saying that it is  not possible to give a precise definition of the expression  "ordinarily resident" for purposes mentioned in the electoral  law.  We would also not make an attempt to give such  definition in these proceedings since that would be a matter  within the domain of the Legislature.  What we want to  emphasize is only the fact that the Central Government faced  difficulty in giving a precise definition of the expression and  candidly admitted the difficulty while introducing the  amendment.   In this context, what could be open to the Court is to  examine whether the difficulty in giving precise definition was  not a bona fide reason in view of the meaning of the expression  given in Section 20 of the RP Act, 1950 or in the face of the  dictionary meaning by which the said expression can be  generally understood. We have already found that the  provision in question leaves much to be desired and the  guidance provided by law is deficient in that it does not give a  clear cut definition as to how the question of ordinary  residence of an individual is to be determined.    Article 84 of the Constitution provides for qualifications  for membership of Parliament. The requirements in Article 84  for a person to fill up a seat in either House of Parliament,  including the Council of States, are: - (i)     The person elected should be a citizen of India;

(ii)    He must subscribe an oath of affirmation as  per the form set out in the Third Schedule;

(iii)   In the case of Council of States he must be not  less than 30 years of age;

(iv)    He must possess such other qualifications as  may be prescribed in this behalf by or under  any law made by Parliament.

The disqualifications for being chosen as, or for being, a  member of either House of Parliament are contained in Article  102.  A person incurs disqualification if he: - (i)     holds any office of profit; (ii)    is of unsound mind and stands so declared by  a competent court;

(iii)   is an un-discharged insolvent; (iv)    is not a citizen of India or has voluntarily  acquired a citizenship of a foreign State etc;

(v)     is so disqualified under any law made by the  Parliament.

The Constitution, thus, has no requirement that a person  chosen to represent a State in the Council of States must  necessarily be a voter in that State itself. The Constitution,  after prescribing certain qualifications and disqualifications,  has left it to the Parliament to provide other such  qualifications or disqualifications. The Parliament had initially  prescribed an additional qualification that a person so chosen  should be an elector for a Parliamentary constituency in the  State. After working out this provision for more than five  decades, the Parliament in its legislative wisdom, decided

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through the impugned amendment that a person chosen to be  a representative of a State in the Council of States need not  necessarily be an elector within the particular State or, in  other words he must be an elector in any parliamentary  constituency in India, but not necessarily in the concerned  State.  Union of India has submitted that the Parliamentary  Debates and the Report of the Standing Committee indicate  that the experience of the past fifty years has been considered.  According to its submissions, the considerations which  weighed with the Parliament, inter alia, included the fact 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.  Union of India would also claim 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 just in order that they  could be elected from such State. It has been further  submitted that unless they did so, some States would remain  unrepresented in the Council of Ministers due to the non- availability of such talented members of these States in the  House of the People and the Council of States and, thus, the  opening out of the residential provision was meant to help in  this regard. The Constitution under Article 19(1)(e) guarantees  the freedom to a citizen to choose a residence of his choice.  There are several cases of elected representatives who may  have multiple residences and may have to choose any one of  them as a matter of convenience where to vote. The cases of persons maintaining multiple residences at  several places would be few and far between.  Even otherwise  that should not have posed any problem since the requirement  of law was that of ordinary residence which would not apply to  each of the several residences of a person.    We are not concerned with the political compulsions or  considerations that are implied by some of the above- mentioned submissions of the Union of India and others  supporting its stand.  It is not necessary for us to examine the  plea of the Union of India as to the competence or talent of, or  the addition to the quality of debates or discussion in  Parliament due to participation by, certain specific members of  Parliament reference to whose names was sought to be made  by the learned counsel in the course of arguments contesting  the contentions of the writ petitioners.   Suffice it to say here that the submissions on both sides  would show that the erstwhile arrangement in the law, that is  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 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.  We mention this trend because  its existence was alleged by some counsel and not denied by  anyone.  This undoubtedly could not be a happy state of  affairs.   Nonetheless, if 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

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with such decision of the Parliament on the ground that  difficulty to define what was meant by the expression  "ordinarily resident" was not an honest ground.  This, for the  simple reason that 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.   We must, however, add here that while the impugned  amendment cannot be assailed on the above mentioned  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 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.  We would only hope  for purposes of its proper application under the relevant  provisions of the law concerning elections that the Parliament  and the Central Government would take necessary steps to  unambiguously define the said expression.   As regards the criticism that the reasons given in the  counter affidavit of the Union of India are distinct from those  set out in the Statement of Objects and Reasons of the Bill  that became the impugned law, we may only state that the  Statement of Objects and Reasons of a proposed legislation is  not the compendium of all possible reasons or justification.   We do not find any contradiction in the stand taken by the  Union of India in these proceedings in relation to the  Statement of Objects and Reasons of the impugned  amendment. Rendering it a case of ’No qualification’ - Abdication of its  Function by Parliament

The counsel for the petitioners have argued that the  impugned amendment has dispensed with the only  qualification (the residential qualification) that had been built  in by the Parliament in the provision to give meaning to the  representative character of the person chosen to be the  member of the Council of States, and at the same time failed  to define or prescribe any other criteria which Parliament  regards as relevant for the person elected being a  "representative" of that State. They would submit that the  marginal note "Qualification for the Membership of Council of  States" which had been retained for Section 3 of the RP Act,  1951 had been rendered meaningless. The learned counsel, Mr. Nariman, would grant that,  under Article 84 (c) read with Article 327 and Entry 72 of the  Union List, it is within the legislative competence of Parliament  to define or modify the qualifications for the Member of  Parliament by making law from time to time. The Petitioners  would even concede that the only way of ensuring the  representative character may not be by the State being  represented by a person "ordinarily resident" in that State  which, according to them, was the original method adopted, as  reflected in Section 3 of RP Act, 1951 but other links can be  found. Thus, it is not disputed that the connection of  "residence" could from time to time be changed or amended  when circumstances so demanded.  The argument, however, is that Section 3 could be  amended by Parliament only so long as it mentioned some  qualification for representation of person to be elected as  member of Council of States. According to the petitioners, this  must be done by putting in position some other appropriate  method of ensuring representation of a particular State in the  Council of States.

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It has been submitted 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 he is ordinarily  resident, and 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. It is the contention of the petitioners that on the  assumption that there was need for laying down a criteria  other than the requirement of residence in a particular State,  some different or alternative qualification or method of  representation could have been prescribed; such as birth,  education, carrying on business or working for gain in the  place for a period prescribed or doing philanthropic or  charitable work in a State by persons residing outside the  State. They argue that some roots or some connection had to  be ensured to be existing so as to maintain the representative  character of the person to be elected as representative of the  particular State.  But, it is the grievance of the petitioners 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. Developing the above argument further, Mr. Nariman  submitted that, after the impugned amendment, there is "in  effect" no qualification prescribed by Parliament for the person  elected being a representative of the particular State, Assembly  of which has elected him, since he may be an elector in any  Parliamentary Constituency "in India", which according to the  Counsel is not a qualification for the person chosen by the  particular State Assembly to be a "representative of" that  State.  It is now left to the entire subjective determination of  each State Assembly, to elect any one, even one who is an  elector (i.e. ordinarily resident) in any other State or one who  has no connection whatsoever with the State that chooses him  to be its representative in the Council of States. It has been argued 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.  The contention is that by this amendment, Parliament has in  effect abdicated its allotted function under Article 84(4), which  had been examined when enacting Section 3 of the RP Act  1951 by defining as to who would be the representatives of  each State in the Council of States, but this has now been left  to be determined in each individual case by the majority of  Members of the State Assembly who elect a particular person  i.e. irrespective of whether or not the person chosen has any  connection with the State by birth, residence, performance of  public duties or otherwise. The argument is that the will of the State assemblies on  the issue as to who qualifies to be a representative of the State  within the meaning of the expression used in Article 80 is not  sufficient or good guide since the question of qualifications  had been left by the Constitution to be prescribed by the  Parliament and not the members of State Legislative  Assemblies. To deny to the State assemblies reference to some  criteria prescribed by law by Parliament totally negates one  important aspect of federation in the Constitution viz. the  effective representation of States in the Council of States. The arguments of the petitioners on above lines do not

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impress us. It is all a matter relating to the legislative  competence of Parliament on which the challenge to the  validity falls apart. The Constitutional provisions dealing with elections to  the Council of States are, inter alia, contained in Articles 80  and 327. Article 80 (4) provides that elections to the Council of  States shall be by a system of proportional representation by  means of a single transferable vote by the elected members of  the legislative assemblies of the States. Article 327, inter alia,  provides that subject to the provisions of the Constitution,  Parliament may "from time to time" by law make provisions  with respect to all matters relating to or in connection with  elections to either House of Parliament.   The above provisions leave no room for doubt that the  Constitution recognized the need for changes in the law  relating to elections from time to time and entrusted  Parliament with the responsibility, as also the requisite power,  to bring in legislative measures as and when required in such  regard, which would include the power to amend the existing  measures. Should there be any doubt entertained by any  quarter in this respect, reference may be made to the case of  Hari Prasad Mulshanker Trivedi v. V.B. Raju & Ors.  [(1974) 3 SCC 415: (1974) 1 SCR 548], wherein it has been  held by this Court that:-  "Article 327 gives full power to  Parliament subject to the provisions of  the Constitution to make laws with  respect to all matters relating to or in  connection with elections including the  preparation of electoral rolls".    Parliament has the power, rather an exclusive one, under  Article 246 to make laws with respect to any of the matters  enumerated in the Union List of the Seventh Schedule. In  exercise of the powers conferred on it under Article 246 read  with Articles 84 & 327 and Entry 72 of the Union List of the  Seventh Schedule to the Constitution, it is a matter for  Parliament to decide by making law as to what qualifications  "other" than those prescribed in the Constitution be made  compulsory to be fulfilled by persons seeking to fill seats in the  Council of States as representatives of the States.  It is  provided in Article 80 (2) that allocation of seats in the Council  of States to be filled by the representatives of States and the  Union Territories shall be in accordance with the provisions in  that behalf contained in the Fourth Schedule. In Article 80 (4),  it is provided that the representatives of each State shall be  elected by the elected Members of the Legislative Assembly of  that State in accordance with the system of proportional  representation by means of a single transferable vote. Article 84 of the Constitution prescribes the  qualifications for membership of Parliament while Article 102  indicates the disqualifications. Under the most relevant  clause, Article 84 (c), it is for Parliament to prescribe "such  other qualifications" for membership of the Council of States  as it may deem necessary or proper; that is, qualifications  other than the two Constitutionally prescribed under Article  84(a) and (b), viz., citizenship of India and minimum age (not  less than 30 years). Apart from the above, the Constitution does not put any  restriction on the legislative powers of the Parliament in this  regard. 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

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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. In  People’s Union For Civil Liberties & Anr. v. Union  of India & Anr. [(2003) 4 SCC 399], 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. Even without going into the debate as to whether right to  vote is a statutory or Constitutional right, the right to be  elected is indisputably a statutory right, i.e., the right to stand  for elections can be regulated by law made by Parliament. It is  pure and simple a statutory right that can be created and  taken away by Parliament and, therefore, must always be  subject to statutory limitations. In N.P. Ponnuswami v. Returning Officer, Namakkal  Constituency & Ors. [1952 SCR 218], this Court noticed  with approval the decision of Privy Council in Joseph  Theberge & Anr. v. Phillippe Laudry [(1876) 2 AC 102],  and held that the right to stand as a candidate for election is  not a civil right, but is a creation of statute or special law and  must be subject to the limitations imposed by it. It was  observed in Paragraph 19 of the Judgment as under: -

"The points which emerge from this  decision may be stated as follows:

"(1) The right to vote or stand as a  candidate for election is not a civil  right but is a creature of statute or  special law and must be subject to the  limitations imposed by it.

(2) Strictly speaking, it is the sole right  of the legislature to examine and  determine all matters relating to the  election of its own members, and if the  legislature takes it out of its own  hands and vests in a Special Tribunal  an entirely new and unknown  jurisdiction, that special jurisdiction  should be exercised in accordance with  the law which creates it." (emphasis supplied)

In the case of Hari Prasad Mulshanker Trivedi (supra),  it was reiterated that: -  "The right to stand for election is a  statutory right and the statute can  therefore regulate the manner in which  the right has to be enforced or the  remedy for enforcing it."  

Similar view was expressed by this Court once again in  Jyoti Basu v. Debi Ghosal, [(1982) 1 SCC 691], in following

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words:-  "A right to elect, fundamental though it  is to democracy, is, anomalously enough,  neither a fundamental right nor a  common law right. It is pure and simple,  a statutory right. So is the right to be  elected. So is the right to dispute an  election. Outside of statute, there is no  right to elect, no right to be elected and  no right to dispute an election. Statutory  creations they are, and therefore, subject  to statutory limitation. An election  petition is not an action at common law,  nor in equity. It is a statutory proceeding  to which neither the common law nor the  principles of equity apply but only those  rules which the statute makes and  applies. It is a special jurisdiction, and a  special jurisdiction has always to be  exercised in accordance with the statute  creating it. Concepts familiar to common  law and equity must remain strangers to  election law unless statutorily embodied.  A court has no right to resort to them on  considerations of alleged policy because  policy in such matters as those, relating  to the trial of election disputes, is what  the statute lays down. In the trial of  election disputes, court is put in a strait- jacket. Thus the entire election process  commencing from the issuance of the  notification calling upon a constituency  to elect a member or members right up to  the final resolution of the dispute, if any,  concerning the election is regulated by  the Representation of the People Act,  1951, different stages of the process  being dealt with by different provisions of  the Act. There can be no election to  Parliament or the State Legislature except  as provided by the Representation of the  People Act, 1951 and again, no such  election may be questioned except in the  manner provided by the Representation  of the People Act. So the Representation  of the People Act has been held to be a  complete and self-contained code within  which must be found any rights claimed  in relation to an election or an election  dispute. ........." (emphasis supplied)

The Constitution by Article 84 has prescribed  qualifications for membership of either House of Parliament.  Article 84 (c) does not make it compulsory for Parliament to  prescribe any qualification other than those prescribed by  Clauses (a) & (b).  Parliament may or may not prescribe some  such qualifications, and having prescribed some may repeal  them whenever it so desires.  It is difficult to accept the  argument that once the Parliament prescribes a qualification,  it cannot revoke or repeal it. There is no such limitation on  Parliament’s legislative power, which is confirmed by Entry 72  of the Union List in the Seventh Schedule. The language of  Clause (c) of Article 84 creates a power and not a duty. If it is  not bound to prescribe any additional qualification, it is also

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not bound to provide a substitute for the one done away with. The thrust of the argument of the petitioners is that  ’outsider’ would be given preference to an ’insider’. This need  not be invariably the end result, since outcome of an election  would depend on the choice of the Electoral College, viz. the  legislative assembly of the State, than on any other factor. In  any event, even if an ’outsider’ is selected, it is too far-fetched  to contend that the "character" of the House would  consequently stand altered. 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. If the electors so chose,  they can always choose a person who has link or nexus with  the State, that is link of the kind mentioned by the petitioners. The argument that the amended Section 3 of RP Act,  1951 is futile or that the impugned amendment makes Section  3 nugatory is not correct. Whilst Article 84 prescribes  citizenship of India as qualification for membership Section 3,  after the amendment, restricts qualification of member of  Council of States to an elector who is resident in India.  This  would exclude non resident Indian citizens. This is also a  significant restriction. It is, therefore, clear that Section 3  continues to provide a qualification for membership of the  Council of States, namely that one has to be a citizen who is a  resident of India.  All that the impugned amendment has done  is to enlarge the scope of consideration for election to the  Council of States by removing the restriction that persons  qualified to stand would only be electors in the State  concerned. 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. The submission that the Parliament has ’abdicated’ its  obligations is not correct. In the first place, as has been  observed above, it was not obligatory on Parliament to enact a  law regarding qualifications or to frame any qualifications. 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. This, by no stretch of reasoning, can be said to be  an abdication of the Parliament’s obligations or functions. Under the aforesaid Constitutional mandate, Parliament  has, inter alia, enacted the RP Acts of 1950 and 1951, as well  as the impugned amendment Act. By the impugned  amendment Act, the requirement of being a voter in a  particular State has been done away with. Thus, in our view the arguments raised by the petitioners  do not hold water. The impugned amendment to Section 3 of  the RP Act, 1951 cannot be assailed as unconstitutional. It  passes muster in view of legislative competence. It does not  transgress the provisions of Part III of the Constitution, nor for  that matter any other provision, express or implied, of the  Constitution. The requirement of ’residence’ cannot be read in  Article 80(4) of the Constitution.  The challenge thus must be  repelled.

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Issue No.II : Secrecy of Voting Section 59 provided for the ’Manner of voting at  elections’ to be "by ballot in such manner as may be  prescribed".  Section 94 made its prescription clear by  marginal note reading ’Secrecy of voting not to be  infringed’, giving immunity mainly to the voter against  compulsion to disclose by declaring, in no uncertain terms,  that "No witness or other person shall be required to state for  whom he has voted at an election". Section 128 made further  provision for insulating the right of the voter to secrecy of vote  from onslaught and arranging ’Maintenance of secrecy of  voting’ by making it an obligation of every person entrusted  with election duties to "maintain, and aid in maintaining, the  secrecy of the voting" and, unless so "authorized by or under  any law", not to "communicate to any person any information  calculated to violate such secrecy". Through the impugned amendments a proviso each has  been added to Sections 59, 94 and 128, as noted in the  beginning of the judgment. These amendments have carved  out an exception to the general rule of secrecy for purposes of  the elections for filling up a seat in the Council of States,  which is now to be held "by open ballot", thus no longer  subject to the principle of secret ballot. Petitioners’ submissions on Open Ballot and Secrecy         For filling the seats in Council of States, the amendments  made in Sections 59, 94 and 128 of the RP Act 1951 have  introduced the concept of Open Ballot in place of Secret Ballot.         It has been submitted that the right of secrecy in the  election of Members of Rajya Sabha is an essential part of  democracy that is based on free and fair elections. The voters  should have freedom of expressing their view through their  votes. 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.         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  petitioners urge that Human Rights contained in Universal  Declaration of Human Rights and International Covenant on  Civil and Political Rights may be taken in aid of Fundamental  Rights to elucidate them and to make them more effective, as  has been held in various cases. On the above premise, it has  been 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. Submission of Union of India on Open Ballot & Secrecy

       The submission is that there is no constitutional  requirement that election to the Council of States be  conducted "by secret ballot", as has been expressly provided  under Article 55(3) and Article 66(1) for elections to the offices  of the President of India and the Vice President of India  respectively.         It has been 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.  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

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Tenth Schedule to the Constitution.  Union of India contends  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".         Further submission is that "secret ballot is not an  inflexible or mandatory procedure" for ensuring free and fair  elections in the country 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".         Union of India has also submitted copy of the First  Report of the Ethics Committee of Parliament, as adopted on  15th December, 1999 and published by the Rajya Sabha  Secretariat, under the chairmanship of Shri S.B. Chavan,  which had recommended the open ballot system as follows: - "19. The Committee has also noted the  emerging trend of cross-voting in the  elections for Rajya Sabha and the  Legislative Councils in States.  It is often  alleged that large sums of money and  other considerations encourage the  electorate for these two bodies to vote in a  particular manner leading sometimes to  the defeat of the official candidates  belonging to their own political party.  In  order not to allow big money and other  considerations to play mischief with the  electoral process, the Committee is of the  view that instead of secret ballot, the  question of holding the elections to Rajya  Sabha and the Legislative Councils in  States by open ballot may be examined."

       The amendments brought about by Act 40 of 2003 which  are also subject matter of challenge in these matters have  already been noticed.          Part V of the RP Act, 1951 relates to the "Conduct of  Elections". Chapter 4 of the said Part of the RP Act, 1951  covers the topic of "The Poll".  Amongst others, it includes  Section 59 relating to the "manner of voting on elections".         Section 59 of RP Act, 1951 was amended twice in the  year 2003, firstly with effect from 22nd March, 2003 by the  Election Laws (Amendment) Act, 2003 (Act 24 of 2003) and  then with effect from 28th August, 2003 by Act 40 of 2003 (the  impugned amendment). The amendment through Act 24 of  2003 is not of much consequence for the present purposes  and had only substituted the words "and no votes shall be  received by proxy" with the words "and, save as expressly  provided by this Act, no votes shall be received by proxy".          The amendment through Act 40 of 2003 added a proviso  to Section 59 of RP Act, 1951, so as to provide for elections to  fill seats in the Council of States to be held "by open ballot".   Section 59, after amendment, reads as under: - "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, save as  expressly provided by this Act, no votes  shall be received by proxy.

    Provided that the votes at every  election to fill a seat or seats in the  Council of States shall be given by open

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ballot."

       There were two other provisions of RP Act, 1951 that  were amended by Act 40 of 2003, which changes have been  described as amendments consequential to the amendment  made to Section 59.  These others provisions also need to be  noticed at this stage.          Part VI of the RP Act, 1951 relates to "Disputes Regarding  Elections".  The election petitions lie under these provisions to  the High Courts.  Chapter III of Part VI relates to the "Trial of  Election Petitions".  Section 94 falling under this Chapter, as  originally enacted read as under : "Secrecy of voting not to be infringed \026  No witness or other person shall be  required to state for whom he has voted  at an election."

       The Act 40 of 2003 has added a proviso to the aforesaid  provision.  The amended provision now reads as under: - "Secrecy of voting not to be infringed \026  No witness or other person shall be  required to state for whom he has voted  at an election. Provided that this section shall not apply  to such witness, or other person where he  has voted by open ballot."

       Part VII of RP Act, 1951 relates to the "Corrupt Practices  and Electoral Offences".  Chapter I defines "Corrupt Practice".   Chapter III relates to "Electoral Offences".  Section 128 falling  in this Chapter, as originally enacted read as under: - "128. Maintenance of secrecy of voting.  \026 (1) Every officer, clerk, agent or other  person who performs any duty in  connection with the recording or counting  of votes at an election shall maintain, and  aid in maintaining, the secrecy of the  voting and shall not (except for some  purpose 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  with fine or with both."

       Act 40 of 2003 has added a proviso to sub-section (1) so  as to carve out an exception in relation to the election to the  Council of States.  After amendment, sub-section (1) of Section  128 reads as under : "128. Maintenance of secrecy of  voting.\026 (1) Every officer, clerk, agent or  other person who performs any duty in  connection with the recording or counting  of votes at an election shall maintain, and  aid in maintaining, the secrecy of the  voting and shall not (except for some  purpose authorized by or under any law)  communicate to any person any  information calculated to violate such

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secrecy.

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 cumulative effect of the amendments to Sections 59,  94 and 128 of RP Act, 1951, brought about by Act 40 of 2003  thus is that the elections for filling up a seat in the Council of  States is now to be held "by open ballot".  The requirement of  maintenance of secrecy of voting is now made subject to an  exception mentioned in the proviso. Free and Fair Elections The learned Counsel representing the petitioners, while  arguing on the challenge to the impugned amendment  respecting the secrecy of ballot in the election to fill the seats  of the representatives of the States in the Council of States  again referred to the ’basic structure’ theory and submitted  that democracy was part of the basic features of the  Constitution. They would submit that free and fair election  was a concept inherent in the democratic values adopted by  our polity.  There cannot be any quarrel with these preliminary  propositions urged on behalf of the petitioners.  It has been authoritatively held, time and again, by this  Court that democracy is a basic feature of the Constitution of  India, one that is not amenable to the power of amendment of  the Parliament under the Constitution. It has also been the  consistent view of this Court that the edifice of democracy in  this country rests on a system of free and fair elections. These  principles are discernible not only from the preamble, which  has always been considered as part of the Constitution, but  also from its various provisions.  Should there be any doubt  still lurking in any mind, the following cases can be referred  to, with advantage, in this context. The views of Sikri, CJ in Kesavananda Bharati,  expressed in Paragraph 292, have been noticed, in extenso,  earlier in the context of plea regarding federalism. He has  clearly referred to "Republican and Democratic form of  Government" as one of the features constituting the basic  structure of the Constitution.  In the same case, Shelat & Grover JJ, in their separate  judgment, also found "Republican and Democratic form of  government and sovereignty of the country" amongst "the  basic elements of the constitutional structure" as discernible  from "the historical background, the preamble, the entire  scheme of the Constitution, relevant provisions thereof  including Article 368". Hegde and Mukherjee JJ, observed in  their judgment  that "the basic elements and fundamental features of the  Constitution" found "spread out in various other parts of the  Constitution" are also set out "in the provisions relating to the  sovereignty of the country, the Republican and the Democratic  character of the Constitution". In the words of Jaganmohan Reddy, J in  his separate  judgment, the "elements of the basic structure are indicated in  the Preamble and translated in the various provisions of the  Constitution" and the "edifice of our Constitution is built upon  and stands on several props" which, if removed would result in  the Constitution collapsing and which include the principles of  ’Sovereign Democratic Republic’ and ’Parliamentary  democracy’, a polity which is "based on a representative

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system in which people holding opposing view to one another  can be candidates and invite the electorate to vote for them". The views of this Court, as expressed in Paragraph 264 of  the judgment in Indira Nehru Gandhi have been extracted in  earlier part of this judgment. Suffice it to note here again that  the law laid down by the majority in Kesavananda Bharati  (supra) was taken note of and on the question "as to what are  the basic structures of the Constitution", it was found to  "include supremacy of the Constitution, democratic republican  form of Government". The following observations in Paragraph 198 of the  judgment in Indira Nehru Gandhi (supra) also need to be  noticed as they are relevant in the context of the principle that  ’free and fair elections’ lies at the core of democracy: - "198. This Court in the case of  Kesavananda Bharati held by  majority that the power of  amendment of the Constitution  contained in Article 368 does not  permit altering the basic structure  of the Constitution. All the seven  Judges who constituted the majority  were also agreed that democratic  set-up was part of the basic  structure of the Constitution.  Democracy postulates that there  should be periodical elections, so  that people may be in a position  either to re-elect the old  representatives or, if they so choose,  to change the representatives and  elect in their place other  representatives. Democracy further  contemplates that the elections  should be free and fair, so that the  voters may be in a position to vote  for candidates of their choice.  Democracy can indeed function only  upon the faith that elections are free  and fair and not rigged and  manipulated, that they are effective  instruments of ascertaining popular  will both in reality and form and are  not mere rituals calculated to  generate illusion of defence to mass  opinion. Free and fair elections  require that the candidates and  their agents should not resort to  unfair means or malpractices as  may impinge upon the process of  free and fair elections."  (emphasis supplied)

Mohinder Singh Gill v. Chief Election Commissioner  [(1978) 1 SCC 405], is another case that is significant in the  present context. In Paragraph 2, the following words indicated  the controversy in the preface: - "2. Every significant case has an  unwritten legend and indelible lesson.  This appeal is no exception, whatever its  formal result. The message, as we will see  at the end of the decision, relates to the  pervasive philosophy of democratic  elections which Sir Winston Churchill

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vivified in matchless, words:

"At the bottom of all tributes  paid to democracy is the little  man, walking into a little  booth, with a little pencil,  making a little cross on a little  bit of paper \027 no amount of  rhetoric or voluminous  discussion can possibly  diminish the overwhelming  importance of the point."

If we may add, the little, large Indian  shall not be hijacked from the course of  free and fair elections by mob muscle  methods, or subtle perversion of  discretion by men "dressed in little, brief  authority". For "be you ever so high, the  law is above you"."

       The Court spoke in Paragraph 23 about the philosophy of  election in a democracy, which reads as under: - "Democracy is government by the  people. It is a continual participative  operation, not a cataclysmic,  periodic exercise. The little man, in  his multitude, marking his vote at  the poll does a social audit of his  Parliament plus political choice of  this proxy. Although the full flower  of participative Government rarely  blossoms, the minimum credential  of popular Government is appeal to  the people after every term for a  renewal of confidence. So we have  adult franchise and general  elections as constitutional  compulsions. "The right of election  is the very essence of the  constitution" (Junius). It needs little  argument to hold that the heart of  the Parliamentary system is free and  fair elections periodically held,  based on adult franchise, although  social and economic democracy may  demand much more." (emphasis supplied)

Some of the important holdings were set down in  Paragraph 92 of the aforementioned judgment "for  convenience" and to "synopsize the formulations". The  holdings included the following: - "\005\005\005(2)(a)     The Constitution  contemplates a free and fair election and  vests comprehensive responsibilities of  superintendence, direction and control of  the conduct of elections in the Election  Commission. This responsibility may  cover powers, duties and functions of  many sorts, administrative or other,  depending on the circumstances.         (b)     Two limitations at least are laid  on its plenary character in the exercise

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thereof. Firstly, when Parliament or any  State Legislature has made valid law  relating to or in connection with  elections, the Commission, shall act in  conformity with, not in violation of, such  provisions but where such law is silent  Article 324 is a reservoir of power to act  for the avowed purpose of, not divorced  from, pushing forward a free and fair  election with expedition. Secondly, the  Commission shall be responsible to the  rule of law, act bona fide and be  amenable to the norms of natural justice  insofar as conformance to such canons  can reasonably and realistically be  required of it as fairplay-in-action in a  most important area of the constitutional  order viz. elections. Fairness does import  an obligation to see that no wrongdoer  candidate benefits by his own wrong. To  put the matter beyond doubt, natural  justice enlivens and applies to the  specific case of order for total re-poll,  although not in full panoply but in  flexible practicability. Whether it has  been complied with is left open for the  Tribunal’s adjudication.          \005\005\005\005.." (emphasis supplied)

       The case reported as S. Raghbir Singh Gill v. S.  Gurcharan Singh Tohra [1980 Supp. SCC 53] is also  relevant for purposes at hand. While construing the provisions  of the RP Act, 1951, this Court expressed the following views: - "\005\005An Act to give effect to the basic  feature of the Constitution  adumbrated and boldly proclaimed  in the preamble to the Constitution  viz. the people of India constituting  into a sovereign, secular, democratic  republic, has to be interpreted in a  way that helps achieve the  constitutional goal. \005\005 The goal on  the constitutional horizon being of  democratic republic, a free and fair  election, a fountain spring and  cornerstone of democracy, based on  universal adult suffrage is the basic.  The regulatory procedure for  achieving free and fair election for  setting up democratic institution in  the country is provided in the Act.  \005\005".  (emphasis supplied)

       The case reported as Kihoto Hollohan v. Zachillhu &  Ors. [1992 Supp (2) SCC 651], also resulted in similar views  being reiterated by this Court in the following words: - "179. Democracy is a part of the  basic structure of our Constitution;  and rule of law, and free and fair  elections are basic features of  democracy. One of the postulates of  free and fair elections is provision  for resolution of election disputes as

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also adjudication of disputes  relating to subsequent  disqualifications by an independent  authority\005"  (emphasis supplied)

       That Parliamentary democracy is part of the basic  structure of the Constitution was reiterated by this Court in  P.V. Narasimha Rao’s case (supra) in following words: "As mentioned earlier, the object of the  immunity conferred under Article 105(2)  is to ensure the independence of the  individual legislators. Such independence  is necessary for healthy functioning of the  system of parliamentary democracy  adopted in the Constitution.  Parliamentary democracy is a part of the  basic structure of the Constitution."

In the case reported as Union of India v. Association  for Democratic Reforms & Anr. [(2002) 5 SCC 294], this  court reiterated as under: - "21. Further, it is to be stated that: (a)  one of the basic structures of our  Constitution is "republican and  democratic form of government"; (b) the  election to the House of the People and  the Legislative Assembly is on the basis of  adult suffrage, that is to say, every  person who is a citizen of India and who  is not less than 18 years of age on such  date as may be fixed in that behalf by or  under any law made by the appropriate  legislature and is not otherwise  disqualified under the Constitution or  any law on the ground of non-residence,  unsoundness of mind, crime or corrupt  or illegal practice, shall be entitled to be  registered as a voter at any such election  (Article 326); (c) holding of any asset  (immovable or movable) or any  educational qualification is not the  eligibility criteria to contest election; and  (d) under Article 324, the  superintendence, direction and control of  the "conduct of all elections" to  Parliament and to the legislature of every  State vests in the Election Commission.  The phrase "conduct of elections" is held  to be of wide amplitude which would  include power to make all necessary  provisions for conducting free and fair  elections."  (emphasis supplied)

       In People’s Union for Civil Liberties (PUCL), this Court  held that "It also requires to be well understood that  democracy based on adult franchise is part of the basic  structure of the Constitution."         There can thus be no doubt about the fact that  democracy is a basic feature of the Constitution of India and  the concept of democratic form of government depends on a  free and fair election system.         It is the contention of the writ petitioners that free and  fair election is a constitutional right of the voter, which

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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".  These submissions need elaborate examination. Right to vote \026 a Constitutional/Fundamental right The learned Counsel have submitted 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, as per the provisions contained in Article 80 (4), is a  Constitutional right, if not a Fundamental right.  Reliance has been placed in this context by the  petitioners on the Union of India v. Association for  Democratic Reforms and Anr. (supra) wherein this Court  was considering the right of the voter to know about the  candidates contesting election.  Having found that such a right  existed, it was observed in Paragraph 22 as under: - "\005..In democracy, periodical elections are  conducted for having efficient governance  for the country and for the benefit of  citizens \027 voters. In a democratic form of  government, voters are of utmost  importance. They have right to elect or re- elect on the basis of the antecedents and  past performance of the candidate. The  voter has the choice of deciding whether  holding of educational qualification or  holding of property is relevant for electing  or re-electing a person to be his  representative. Voter has to decide  whether he should cast vote in favour of a  candidate who is involved in a criminal  case. For maintaining purity of elections  and a healthy democracy, voters are  required to be educated and well  informed about the contesting  candidates\005\005." (emphasis supplied)

In Paragraph 46 of the judgment, the legal and  constitutional position emerging from the discussion was  summed up thus: - "\005\005.. 4. To maintain the purity of elections and  in particular to bring transparency in the  process of election, the Commission can  ask the candidates about the expenditure  incurred by the political parties and this  transparency in the process of election  would include transparency of a  candidate who seeks election or re- election. In a democracy, the electoral  process has a strategic role. The little  man of this country would have basic  elementary right to know full particulars  of a candidate who is to represent him in  Parliament where laws to bind his liberty  and property may be enacted.

5. The right to get information in  democracy is recognised all throughout  and it is a natural right flowing from the  concept of democracy. At this stage, we

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would refer to Article 19(1) and (2) of the  International Covenant on Civil and  Political Rights, which is as under:  "(1) Everyone shall have the right to  hold opinions without interference. (2) Everyone shall have the right to  freedom of expression; this right shall  include freedom to seek, receive and  impart information and ideas of all  kinds, regardless of frontiers, either  orally, in writing or in print, in the  form of art, or through any other  media of his choice." \005\005\005

7. Under our Constitution, Article  19(1)(a) provides for freedom of  speech and expression. Voter’s  speech or expression in case of  election would include casting of  votes, that is to say, voter speaks  out or expresses by casting vote. For  this purpose, information about the  candidate to be selected is a must.  Voter’s (little man \027 citizen’s) right  to know antecedents including  criminal past of his candidate  contesting election for MP or MLA is  much more fundamental and basic  for survival of democracy. The little  man may think over before making  his choice of electing law-breakers  as law-makers."  (emphasis supplied)

This Court thus held in the above-mentioned case that a  proper disclosure of the antecedents by candidates in an  election in a democratic society might influence intelligently  the decisions made by the voters while casting their votes.  Casting of a vote by a mis-informed and non-informed voter,  or a voter having one sided information only, is bound to affect  the democracy seriously. This Court, therefore, gave certain  directions regarding the necessity of each candidate furnishing  information. The views expressed in Jyoti Basu (supra) have already  been extracted earlier. It may be noticed again that in that  case this Court had found that a "right to elect, fundamental  though it is to democracy, is, anomalously enough, neither a  fundamental right nor a common law right. It is pure and  simple, a statutory right" and that "Outside of statute, there is  no right to elect, no right to be elected and no right to dispute  an election".  Certain amendments in the law were brought about in  the wake of the judgment of this Court in Union of India v.  Assn. for Democratic Reforms (supra).  This Court  proceeded to examine as to whether the amendments were  legal in People’s Union for Civil Liberties (PUCL).  In People’s Union for Civil Liberties, the above views in  Jyoti Basu’s case were extracted by Shah, J. It may be added  that same views were also reiterated in Rama Kant Pandey v.  Union of India [(1993) 2 SCC 438], wherein it was said, "the  right to vote or to stand as a candidate for election is neither a  fundamental nor a civil right". The following observations of Shah, J. in Paragraph 62 of  the judgment in People’s Union for Civil Liberties (PUCL)

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(supra), need to be borne in mind: - "\005\005\005Such a voter who is otherwise  eligible to cast vote to elect his  representative has statutory right under  the Act to be a voter and has also a  fundamental right as enshrined in  Chapter III. \005\005\005..If any statutory  provision abridges fundamental right,  that statutory provision would be void.  \005\005\005.. The right of an adult to take part  in election process either as a voter or a  candidate could be restricted by a valid  law which does not offend constitutional  provisions. \005\005\005."

       In same case, P.V. Reddi J., in his separate judgment  observed as under in Paragraph 94: - "\005\005\005\005 In a democratic republic, it is  the will of the people that is paramount  and becomes the basis of the authority of  the Government. The will is expressed in  periodic elections based on universal  adult suffrage held by means of secret  ballot. \005\005\005\005Nothing is therefore more  important for sustenance of democratic  polity than the voter making an  intelligent and rational choice of his or  her representative. For this, the voter  should be in a position to effectively  formulate his/her opinion and to  ultimately express that opinion through  ballot by casting the vote. The  concomitant of the right to vote which is  the basic postulate of democracy is thus  twofold: first, formulation of opinion  about the candidates and second, the  expression of choice by casting the vote  in favour of the preferred candidate at the  polling booth. \005\005\005The voter/citizen  should have at least the basic  information about the contesting  candidate, such as his involvement in  serious criminal offences. \005\005\005An  enlightened and informed citizenry would  undoubtedly enhance democratic values.  Thus, the availability of proper and  relevant information about the candidate  fosters and promotes the freedom of  speech and expression both from the  point of view of imparting and receiving  the information. \005\005\005\005 I would say that  such information will certainly be  conducive to fairness in election process  and integrity in public life. The disclosure  of information would facilitate and  augment the freedom of expression both  from the point of view of the voter as well  as the media through which the  information is publicized and openly  debated."  (emphasis supplied) In Paragraph 95, he proceeded to observe as under: - "\005\005. As observed by this Court in Assn.  for Democratic Reforms case a voter  "speaks out or expresses by casting vote".

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Freedom of expression, as contemplated  by Article 19(1)(a) which in many respects  overlaps and coincides with freedom of  speech, has manifold meanings. It need  not and ought not to be confined to  expressing something in words orally or  in writing. The act of manifesting by  action or language is one of the meanings  given in Ramanatha Aiyar’s Law Lexicon  (edited by Justice Y.V. Chandrachud).  \005\005. Having regard to the comprehensive  meaning of the phrase "expression",  voting can be legitimately regarded as a  form of expression. Ballot is the  instrument by which the voter expresses  his choice between candidates or in  respect to propositions; and his "vote" is  his choice or election, as expressed by his  ballot (vide A Dictionary of Modern Legal  Usage, 2nd Edn., by A. Garner Bryan).  "Opinion expressed, resolution or  decision carried, by voting" is one of the  meanings given to the expression "vote"  in the New Oxford Illustrated Dictionary.  It is well settled and it needs no emphasis  that the fundamental right of freedom of  speech and expression should be broadly  construed and it has been so construed  all these years. In the light of this, the  dictum of the Court that the voter  "speaks out or expresses by casting a  vote" is apt and well founded. I would  only reiterate and say that freedom of  voting by expressing preference for a  candidate is nothing but freedom of  expressing oneself in relation to a matter  of prime concern to the country and the  voter himself."(emphasis supplied)

       After referring to the view expressed in Jyoti Basu v.  Debi Ghosal (supra) that the right to elect is "neither a  fundamental right nor a common law right" but "pure and  simple, a statutory right", Reddi J. in Paragraph 97 of the  judgment further observed as under: - " \005\005 With great reverence to the  eminent Judges, I would like to clarify  that the right to vote, if not a  fundamental right, is certainly a  constitutional right. The right originates  from the Constitution and in accordance  with the constitutional mandate  contained in Article 326, the right has  been shaped by the statute, namely the  RP Act. That, in my understanding, is the  correct legal position as regards the  nature of the right to vote in elections to  the House of the People and Legislative  Assemblies. It is not very accurate to  describe it as a statutory right, pure and  simple. Even with this clarification, the  argument of the learned Solicitor-General  that the right to vote not being a  fundamental right, the information which  at best facilitates meaningful exercise of  that right cannot be read as an integral

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part of any fundamental right, remains to  be squarely met. Here, a distinction has  to be drawn between the conferment of  the right to vote on fulfilment of requisite  criteria and the culmination of that right  in the final act of expressing choice  towards a particular candidate by means  of ballot. Though the initial right cannot  be placed on the pedestal of a  fundamental right, but, at the stage when  the voter goes to the polling booth and  casts his vote, his freedom to express  arises. The casting of vote in favour of  one or the other candidate tantamounts  to expression of his opinion and  preference and that final stage in the  exercise of voting right marks the  accomplishment of freedom of expression  of the voter. That is where Article 19(1)(a)  is attracted. Freedom of voting as distinct  from right to vote is thus a species of  freedom of expression and therefore  carries with it the auxiliary and  complementary rights such as right to  secure information about the candidate  which are conducive to the freedom.  \005\005."(emphasis supplied)

Dharmadhikari, J., agreed with Shah, J. and in his  separate judgment observed thus: - "129. Democracy based on "free and fair  elections" is considered as a basic feature  of the Constitution in the case of  Kesavananda Bharati. Lack of adequate  legislative will to fill the vacuum in law  for reforming the election process in  accordance with the law declared by this  Court in the case of Assn. for Democratic  Reforms obligates this Court as an  important organ in constitutional process  to intervene."

The argument of the petitioners is that the majority view  in the case of People’s Union for Civil Liberties, therefore,  was that a right to vote is a constitutional right besides that it  is also a facet of fundamental right under Article 19(1)(a) of the  Constitution.  We do not agree with the above submission. It is clear  that a fine distinction was drawn between the right to vote and  the freedom of voting as a species of freedom of expression,  while reiterating the view in Jyoti Basu v. Debi Ghosal  (supra) that a right to elect, fundamental though it is to  democracy, is neither a fundamental right nor a common law  right, but pure and simple, a statutory right. Even otherwise, there is no basis to contend that the  right to vote and elect representatives of the State in the  Council of States is a Constitutional right. Article 80 (4) merely  deals with the manner of election of the representatives in the  Council of States as an aspect of the composition of the  Council of States. There is nothing in the Constitutional  provisions declaring the right to vote in such election as an  absolute right under the Constitution. Arguments based on Legislative Privileges and Tenth  Schedule

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Be that as it may, the moot contention that has been  raised by the petitioners is that the election of members of the  Council of States is provided for in the Constitution and,  therefore, is a part of the Constitution and that it is inherent  requirement of the principle of free and fair election 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. Arguments based on Legislative Privileges and Tenth  Schedule  

It is the contention of Mr. Rao that apart from Article  19(1)(a), freedom of voting is Constitutionally guaranteed to a  Member of a Legislative Assembly by Article 194 (1) & (2) in  absolute terms.  While the right under Article 19(1)(a) is  subject to reasonable restrictions that may be imposed by law  under Article 19(2), the freedom to vote under Article 194(1)  and (2) is absolute. He would refer to Special Reference No.1  of 1964 [(1965) 1 SCR 413] and Tej Kiran Jain & Ors. V. N.  Sanjiva Reddy & Ors. [(1971) 1 SCR 612]. Article 194 relates to the "Powers, privileges, etc., of  the Houses of Legislatures and of the members and  committees thereof". It is akin to the provisions contained in  Article 105 that pertain to "Powers, privileges, etc., of the  Houses of Parliament and of the members and committees  thereof". It would be proper to take a look at the provisions in  question.  Articles 105 and 194 run as follows :-

"105.Powers, privileges, etc., of the  Houses of Parliament and of the  members and committees thereof.\027(1)  Subject to the provisions of this  Constitution and to the rules and  standing orders regulating the procedure  of Parliament, there shall be freedom of  speech in Parliament. (2) No member of Parliament shall be  liable to any proceedings in any court in  respect of anything said or any vote given  by him in Parliament or any committee  thereof, and no person shall be so liable  in respect of the publication by or under  the authority of either House of  Parliament of any report, paper, votes or  proceedings.

(3) In other respects, the powers,  privileges and immunities of each House  of Parliament, and of the members and  the committees of each House, shall be  such as may from time to time be defined  by Parliament by law, and, until so  defined, shall be those of that House and  of its members and committees  immediately before the coming into force  of Section 15 of the Constitution (Forty- fourth Amendment) Act, 1978.

(4) The provisions of clauses (1), (2) and  (3) shall apply in relation to persons who  by virtue of this Constitution have the  right to speak in, and otherwise to take  part in the proceedings of, a House of  Parliament or any committee thereof as

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they apply in relation to members of  Parliament."

"194. Powers, privileges, etc., of the  Houses of Legislatures and of the  members and committees thereof.\027(1)  Subject to the provisions of this  Constitution and to the rules and  standing orders regulating the procedure  of the Legislature, there shall be freedom  of speech in the Legislature of every  State.

(2) No member of the Legislature of a  State shall be liable to any proceedings in  any court in respect of anything said or  any vote given by him in the Legislature  or any committee thereof, and no person  shall be so liable in respect of the  publication by or under the authority of a  House of such a Legislature of any report,  paper, votes or proceedings.

(3) In other respects, the powers,  privileges and immunities of a House of  the Legislature of a State, and of the  members and the committees of a House  of such Legislature, shall be such as may  from time to time be defined by the  Legislature by law, and, until so defined,  shall be those of that House and of its  members and committees immediately  before the coming into force of Section 26  of the Constitution (Forty-fourth  Amendment) Act, 1978].

(4) The provisions of clauses (1), (2) and  (3) shall apply in relation to persons who  by virtue of this Constitution have the  right to speak in, and otherwise to take  part in the proceedings of, a House of the  Legislature of a State or any committee  thereof as they apply in relation to  members of that Legislature."

In Special Reference No.1 of 1964 [(1965) 1 SCR 413],  this Court examined the provisions contained in Article 194.   The issues concerned the constitutional relationship between  the High Court and the State Legislature.  The President of  India had made a Reference under Article 143(1) to this Court  against the backdrop of a dispute involving the Legislative  Assembly of the State of Uttar Pradesh and two Judges of the  High Court. The factual matrix of the case would show that  the State Assembly had committed an individual to prison for  its contempt. The prisoner had preferred a petition under  Article 226 on which the judges of the High Court had ordered  his release on interim bail. The State Assembly found that in  entertaining the petition and granting bail, the judges of the  High Court had also committed contempt of the State  Legislature and thus issued process, amongst others, against  the said two High Court Judges.   This Court found that Article 194 (1) makes it clear that  "the freedom of speech in the Legislature of every State which  it prescribes, is subject to the provisions of the Constitution,  and to the rules and standing orders, regulating the procedure

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of the Legislature" and that while interpreting the said clause  "it is necessary to emphasize that the provisions of the  Constitution subject to which freedom of speech has been  conferred on the legislators, are not the general provisions of  the Constitution but only such of them as relate to the  regulation of the procedure of the Legislature".  In this view, it  was the opinion of this Court that while Article 194 (1)  "confers freedom of speech on the legislators within the  legislative chamber", Article 194(2) "makes it plain that the  freedom is literally absolute and unfettered."        In Tej Kiran Jain v. N. Sanjiva Reddy (supra), the  issue was as to whether proceedings could be taken in a court  of law in respect of what was said on the floor of Parliament in  view of Article 105(2) of the Constitution. It arose out of a suit  for damages being filed against the respondents on the  allegation that they had made defamatory statements on the  floor of the Lok Sabha during a Calling Attention Motion  against Shankaracharya. The High Court had ruled against  the proposition. Reference was made in appeal to an  observation of this Court in Special Reference No.1 of 1964,  where this Court dealing with the provisions of Article 212 of  the Constitution had pointed out that the immunity under  that Article was against an alleged irregularity of procedure  but not against an illegality, and contended that the same  principle should be applied to determine whether what was  said was outside the discussion on a Calling Attention Motion.  It was submitted that the immunity granted by Article 105 (2)  was to what was relevant to the business of Parliament and  not to something that was utterly irrelevant. This Court, dealing with the contentions of the  appellants, held as under: - "In our judgment it is not possible to read  the provisions of the article in the way  suggested. The article means what it says  in language which could not be plainer.  The article confers immunity inter alia in  respect of "anything said ... in  Parliament". The word "anything" is of the  widest import and is equivalent to  "everything". The only limitation arises  from the words "in Parliament" which  means during the sitting of Parliament  and in the course of the business of  Parliament. We are concerned only with  speeches in Lok Sabha. Once it was  proved that Parliament was sitting and its  business was being transacted, anything  said during the course of that business  was immune from proceedings in any  Court this immunity is not only complete  but is as it should be. It is of the essence  of parliamentary system of Government  that people’s representatives should be  free to express themselves without fear of  legal consequences. What they say is only  subject to the discipline of the rules of  Parliament, the good sense of the  members and the control of proceedings  by the Speaker. The Courts have no say  in the matter and should really have  none."  (emphasis supplied)

It is the contention of the learned counsel that the same  should be the interpretation as to the scope and tenor of the

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provision contained in Article 194 (2) concerning the privileges  of the Members of the Legislative Assemblies of the States who  constitute State wise electoral colleges for electing  representatives of each State in the Council of States under  the provisions of Article 80 (4). The counsel argue that the  freedom of expression without fear of legal consequences as  flowing from Article 194(2) should inure to the Members of the  Legislative Assemblies while discharging their function as  electoral college under Article 80(4).    This argument, though attractive, does not deserve any  credence in the context at hand. The proceedings concerning  election under Article 80 are not proceedings of the "House of  the Legislature of State" within the meaning of Article 194. It is  the elected members of the Legislative Assembly who  constitute, under Article 80 the Electoral College for electing  the representative of the State to fill the seat allocated to that  State in the Council of States. It is noteworthy that it is not  the entire Legislative Assembly that becomes the Electoral  College, but only the specified category of members thereof.  When such members assemble at a place, they do so not to  discharge functions assigned under the Constitution to the  Legislative Assembly. Their participation in the election is only  on account of their ex-officio capacity of voters for the election.  Thus, the act of casting votes by each of them, which also  need not occur with all of them present together or at the  same time, is merely exercise of franchise and not proceedings  of the legislature.   It is time to take up the arguments based on the Tenth  Schedule.  Tenth Schedule was added to the Constitution by the  Constitution (Fifty-second Amendment) Act, 1985, with effect  from 1st March 1985. The purpose of the said amendment as  declared in the Objects and Reasons was to combat the "evil of  political defections" which have been "a matter of national  concern" and which menace has the potency to "undermine  the very foundations of our democracy and the principles  which sustain it". The said amendment also added sub-Articles (2) to  Article 102 and 191 that pertained to Disqualifications for  membership of the Houses of Parliament and Houses of State  Legislature respectively. Paragraph 1 (a) of the Tenth Schedule  also confirms its application to "House" which has been  defined to mean "either House of Parliament or the Legislative  Assembly or, as the case may be, either House of the  Legislature of a State". The new sub-Articles declared, in  identical terms, that a "person shall be disqualified for being a  member" of either of the said Houses "if he is so disqualified  under the Tenth Schedule". Paragraph 2 of the Tenth  Schedule, to the extent germane here, may be extracted as  under : - "2. Disqualification on ground of  defection.\027(1) Subject to the provisions  of paragraphs 4 and 5, a member of a  House belonging to any political party  shall be disqualified for being a member  of the House\027         (a)     XXXXXXX; or         (b)     if he votes or abstains from  voting in such House contrary to any  direction issued by the political party to  which he belongs or by any person or  authority authorised by it in this behalf,  without obtaining, in either case, the  prior permission of such political party,  person or authority, and such voting or

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abstention has not been condoned by  such political party, person or authority  within fifteen days from the date of such  voting or abstention.         Explanation.\027For the purposes of  this sub-paragraph,\027         (a)     an elected member of a House  shall be deemed to belong to the political  party, if any, by which he was set up as a  candidate for election as such member;         (b)     a nominated member of a  House shall,\027         (i) where he is a member of any  political party on the date of his  nomination as such member, be deemed  to belong to such political party;         (ii) in any other case, be deemed to  belong to the political party of which he  becomes, or, as the case may be, first  becomes, a member before the expiry of  six months from the date on which he  takes his seat after complying with the  requirements of Article 99 or, as the case  may be, Article 188.

XXXXXXXXX       "

It is the contention of the petitioners 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. They argue that the  application of the Tenth Schedule itself shows that open ballot  system tends to frustrate the entire election process, as also  its sanctity, besides the provisions of the Constitution and the  RP Act. They submit 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, according to the petitioners, will result in people with  moneybags occupying the seats in the Council of States. The respondents opposing the petitions would, on the  other hand, argue that the Tenth Schedule does not apply to  the election in the Council of States. Its application is  restricted to the proceedings in the House of Legislature and it  has no application to the election conducted under the RP Act.  Nonetheless, learned Counsel would argue, the principles  behind making the elections by open ballot furthers the  Constitutional provisions in the Tenth Schedule.   It has to be borne in mind that the party system is well  recognized in Indian context.  Sections 29-A to 29-C of the RP  Act, 1951 speak of registration of political parties and some of  their privileges & obligations. In S.R. Bommai, this Court ruled as under: - "104. What is further \027 and this is an  equally, if not more important aspect of  our Constitutional law we have adopted a  pluralist democracy. It implies, among  other things, a multi-party system.  Whatever the nature of federalism, the  fact remains that as stated above, as per  the provisions of the Constitution, every  State is constituent political unit and has  to have an exclusive Executive and  Legislature elected and constituted by the

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same process as the Union Government.  Under our political and electoral system,  political parties may operate at the State  and national level or exclusively at the  State level. There may be different  political parties in different States and at  the national level. Consequently,  situations may arise, as indeed they  have, when the political parties in power  in various States and at the Centre may  be different. It may also happen \027 as has  happened till date \027 that through  political bargaining, adjustment and  understanding, a State level party may  agree to elect candidates of a national  level party to Parliament and vice versa.  This mosaic of variegated pattern of  political life is potentially inherent in a  pluralist multi-party democracy like ours.  Hence the temptation of the political  party or parties in power (in a coalition  Government) to destabilise or sack the  Government in the State not run by the  same political party or parties is not rare  and in fact the experience of the working  of Article 356(1) since the inception of the  Constitution, shows that the State  Governments have been sacked and the  Legislative Assemblies dissolved on  irrelevant, objectionable and unsound  grounds. So far the power under the  provision has been used on more than 90  occasions and in almost all cases against  Governments run by political parties in  opposition. If the fabric of pluralism and  pluralist democracy and the unity and  integrity of the country are to be  preserved, judiciary in the circumstances  is the only institution which can act as  the saviour of the system and of the  nation."  (emphasis supplied)

Some of the observations appearing at pages 485-486 in  Kesavananda Bharati are also relevant and are extracted  hereunder: - "Further a Parliamentary Democracy like  ours functions on the basis of the party  system. The mechanics of operation of  the party system as well as the system of  Cabinet Government are such that the  people as a whole can have little control  in the matter of detailed law-making. "\005  on practically every issue in the modern  State, the serried millions of voters  cannot do more than accept or reject the  solutions offered. The stage is too vast to  permit of the nice shades of quantitative  distinctions impressing themselves upon  the public mind. It has rarely the leisure,  and seldom the information, to do more  than indicate the general tendency of its  will. It is in the process of law-making  that the subtler adjustments must be  effected." (Laski: A Grammar of Politics,

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Fifth Edn., pp. 313-314)."  (emphasis supplied)

The Tenth Schedule of the Constitution recognizes the  importance of the political parties in our democratic set-up,  especially when dealing with Members of the Houses of  Parliament and the Legislative Assemblies or Councils. The  validity of the Tenth Schedule was challenged on various  grounds, inter alia, that a political party is not a democratic  entity and the imposition of whips on Members of Parliament  was not in accordance with the Constitutional scheme.   Rejecting this argument, this Court held that it was open for  Parliament to provide that its Members, who have been elected  on a party ticket, act according to the decisions made by the  party and not against it. In Kihoto Hollohan v. Zachillhu (supra) , it was held  that: - "43. Parliamentary democracy envisages  that matters involving implementation of  policies of the government should be  discussed by the elected representatives  of the people. Debate, discussion and  persuasion are, therefore, the means and  essence of the democratic process.  During the debates the Members put  forward different points of view. Members  belonging to the same political party may  also have, and may give expression to,  differences of opinion on a matter. Not  unoften the views expressed by the  Members in the House have resulted in  substantial modification, and even the  withdrawal, of the proposals under  consideration. Debate and expression of  different points of view, thus, serve an  essential and healthy purpose in the  functioning of Parliamentary democracy.  At times such an expression of views  during the debate in the House may lead  to voting or abstinence from voting in the  House otherwise than on party lines. 44. But a political party functions on the  strength of shared beliefs. Its own  political stability and social utility  depends on such shared beliefs and  concerted action of its Members in  furtherance of those commonly held  principles. Any freedom of its Members to  vote as they please independently of the  political party’s declared policies will not  only embarrass its public image and  popularity but also undermine public  confidence in it which, in the ultimate  analysis, is its source of sustenance \027  nay, indeed, its very survival. Intra-party  debates are of course a different thing.  But a public image of disparate stands by  Members of the same political party is not  looked upon, in political tradition, as a  desirable state of things. Griffith and Ryle  on Parliament Functions, Practice and  Procedure (1989 edn., p. 119) say: "Loyalty to party is the norm,  being based on shared beliefs.  A divided party is looked on

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with suspicion by the  electorate. It is natural for  Members to accept the opinion  of their Leaders and  Spokesmen on the wide variety  of matters on which those  Members have no specialist  knowledge. Generally Members  will accept majority decisions  in the party even when they  disagree. It is understandable  therefore that a Member who  rejects the party whip even on  a single occasion will attract  attention and more criticism  than sympathy. To abstain  from voting when required by  party to vote is to suggest a  degree of unreliability. To vote  against party is disloyalty. To  join with others in abstention or  voting with the other side  smacks of conspiracy." (emphasis supplied) Clause (b) of sub-para (1) of Paragraph 2  of the Tenth Schedule gives effect to this  principle and sentiment by imposing a  disqualification on a Member who votes  or abstains from voting contrary to "any  directions" issued by the political party.  The provision, however, recognises two  exceptions: one when the Member  obtains from the political party prior  permission to vote or abstain from voting  and the other when the Member has  voted without obtaining such permission  but his action has been condoned by the  political party. This provision itself  accommodates the possibility that there  may be occasions when a Member may  vote or abstain from voting contrary to  the direction of the party to which he  belongs. This, in itself again, may provide  a clue to the proper understanding and  construction of the expression "any  direction" in clause (b) of Paragraph 2(1)  \027 whether really all directions or whips  from the party entail the statutory  consequences or whether having regard  to the extraordinary nature and sweep of  the power and the very serious  consequences that flow including the  extreme penalty of disqualification the  expression should be given a meaning  confining its operation to the contexts  indicated by the objects and purposes of  the Tenth Schedule. We shall deal with  this aspect separately."  (emphasis supplied)

In Paragraph 122, this Court proceeded to hold as  under:- 122. While construing Paragraph 2(1)(b)  it cannot be ignored that under the

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Constitution Members of Parliament as  well as of the State legislature enjoy  freedom of speech in the House though  this freedom is subject to the provisions  of the Constitution and the rules and  standing orders regulating the Procedure  of the House [Article 105(1) and Article  194(1)]. The disqualification imposed by  Paragraph 2(1)(b) must be so construed  as not to unduly impinge on the said  freedom of speech of a Member. This  would be possible if Paragraph 2(1)(b) is  confined in its scope by keeping in view  the object underlying the amendments  contained in the Tenth Schedule, namely,  to curb the evil or mischief of political  defections motivated by the lure of office  or other similar considerations. The said  object would be achieved if the  disqualification incurred on the ground of  voting or abstaining from voting by a  member is confined to cases where a  change of government is likely to be  brought about or is prevented, as the  case may be, as a result of such voting or  abstinence or when such voting or  abstinence is on a matter which was a  major policy and programme on which  the political party to which the Member  belongs went to the polls. For this  purpose the direction given by the  political party to a Member belonging to  it, the violation of which may entail  disqualification under Paragraph 2(1)(b),  would have to be limited to a vote on  motion of confidence or no confidence in  the government or where the motion  under consideration relates to a matter  which was an integral policy and  programme of the political party on the  basis of which it approached the  electorate. The voting or abstinence from  voting by a Member against the direction  by the political party on such a motion  would amount to disapproval of the  programme on the basis of which he went  before the electorate and got himself  elected and such voting or abstinence  would amount to a breach of the trust  reposed in him by the electorate." (emphasis supplied)

It is not without significance that, barring the exception  in case of independents, which are few and far between,  experience has shown that it is the political parties that mostly  set up the members of legislatures at the Centre or in the  States. We may also refer to the nomination papers prescribed  under the Conduct of Election Rules, 1961 for election to the  Council of States, being Form 2-C, or for election to the State  Legislative Assembly, being Form 2B, each of which require a  declaration to be made by the candidate as to particulars of  the political party that has set him up in the election. This  declaration binds the elected legislators in the matter of  allegiance to the political party in all matters including, and  we find the Attorney General is not wrong in so submitting,

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the support of the party to a particular candidate in election to  the Council of States. Yet, in view of the law laid down in  Kihoto Hollohan v. Zachillhu (supra), it is not correct to  contend that the open ballot system tends to expose the  members of the Legislative Assembly to disqualification under  the Tenth Schedule since that part of the Constitution is  meant for different purposes. International Conventions  The counsel for the petitioners have also submitted that  International Instruments put emphasis on "secret ballot"  since it lays the foundation for ensuring free and fair election  which in turn ensures a democratic government showing the  true will of the people.  The significance of this emphasis lies  in the recognition that it is a democratic Government that is  ultimately responsible for protecting the Human Rights of the  people, viz., civil, political, social and economic rights.  In above context, reference was made to the Universal  Declaration of Human Rights and International Convention on  Civil and Political Rights (ICCPR). Universal Declaration of Human Rights, through Article  21 provides as under: -  "(1) Everyone has the right to take part in  the government of his country, directly or  through freely chosen representatives. (2) Everyone has the right of equal access  to public service in his country. (3) The will of the people shall be the  basis of the authority of government; this  will shall be expressed in periodic and  genuine elections which shall be by  universal and equal suffrage and shall be  held by secret vote or by equivalent free  voting procedures."

International Convention on Civil and Political Rights  (ICCPR), in its Article 25 provides as under: - "Every citizen shall have the right and the  opportunity, without any of the  distinctions mentioned in article 2 and  without unreasonable restrictions: (a) To take part in the conduct  of public affairs, directly or  through freely chosen  representatives; (b) To vote and to be elected at  genuine periodic elections  which shall be by universal  and equal suffrage and shall be  held by secret ballot,  guaranteeing the free  expression of the will of the  electors; (c) To have access, on general  terms of equality, to public  service in his country."

Both the documents, thus, provide for formation of a  government through secret ballot. Prime importance is given in  these two Human Rights instruments on "will of the electors"  giving basis to the authority of Government. It may however be  noticed that in Article 21 of Universal Declaration of Human  Rights the requirement is satisfied not necessarily by secret  ballot but even "by equivalent free voting procedures". The  learned counsel would also rely upon the instrument called  Inter-American Convention, in which the principles of the

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Secret Ballot System, as free expression of the will of voter  have been accepted.  Mr. Sachar pointed out that the above mentioned  expressions were added in Article 25 (b) of ICCPR in the wake  of one view of participatory countries in the Third Committee,  16th Session (1961) to the effect: -     "\005\005Others held that ’genuine periodic  elections’, ’universal and equal  suffrage’  and ’secret ballot’ were the elements of  genuine elections, which in turn  guaranteed the free expression of the will  of the electors (A/C.3/SR.1096, $ 36  (CL), $55(CHI), $63 & $75-76 (UAR), $66  (RL)].  These elements should therefore  remain grouped together."

The learned counsel was at pains to argue that the  international instructions can be used for interpreting the  municipal laws and in support of his plea he would repeatedly  refer to  His Holiness Kesavananda Bharati  Sripadagalvaru v. State of Kerala & Anr. [(1973) 4 SCC  225]; Jolly George Varghese & Anr. v. The Bank of Cochin  [(1980) 2 SCC 360]; People’s Union for Civil Liberties  (PUCL) v. Union of India & Anr. [(1997) 1 SCC 301];  Nilabati Behera v. State of Orissa & Ors. [1993 (2) SCC  746]; Kapila Hingorani v. State of Bihar [2003 (6) SCC 1]  and State of W.B. v. Kesoram Industries Ltd. & Ors.  [(2004) 10 SCC 201]. According to Mr. Sachar, the emphasis in the  aforementioned judgments is that evolving jurisprudence of  human rights is required to be used in interpreting the  Statutes. This argument is in addition to the general argument  that in the absence of any law, this Court may lay down  guidelines in consonance with the principles laid down in the  International Instruments so as to effectuate the Fundamental  Rights guaranteed under the Constitution. There can be no quarrel with the proposition that the  International Covenants and Declarations as adopted by the  United Nations have to be respected by all signatory States  and the meaning given to them have to be such as would help  in effective implementation of the rights declared therein. The  applicability of the Universal Declaration of Human Rights and  the principles thereof may have to be read, if need be, into the  domestic jurisprudence. It was said as early as in Kesavananda Bharati v.  State of Kerala (supra) that "in view of Article 51 of the  directive principles, this Court must interpret language of the  Constitution, if not intractable, which is after all a municipal  law, in the light of the United Nations Charter and solemn  declaration subscribed to by India."  But then, the law on the subject as settled in India is  clear enough as to render it not necessary for this Court to  look elsewhere to deal with the issues that have been raised  here.  Further, in case of conflict, the municipal laws have to  prevail. Secrecy of Vote \026 requisite for free and fair election  The learned Counsel for the petitioners have submitted  that the secrecy of voting has always been the hallmark of the  concept of free and fair election, so very essential in the  democratic principles adopted as our polity. They submit that  this is the spirit of our constitutional law and also universally  accepted norm and that any departure in this respect  impinges on the fundamental rights, in particular freedom of  expression by the voter.  Reference has been made to the case of S. Raghbir

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Singh Gill v. S. Gurcharan Singh Tohra, [1980 Supp SCC  53], in which appeal the core problem concerned the issue as  to whether "Purity of election and secrecy of ballot, two central  pillars supporting the edifice of parliamentary democracy  envisioned in the Constitution" stand in confrontation with  each other or are complementary to each other.   The case of S. Raghbir Singh Gill v. S. Gurcharan  Singh Tohra (supra) pertained to the period anterior to the  impugned amendment. As noticed earlier, Section 94 of the RP  Act, 1951, as it then stood, made provision for ensuring that  "Secrecy of voting" is not infringed in any election. In order to  do this, the provision would make every witness or other  person immune from being "required to state for whom he has  voted at an election." This Court found in the aforementioned case that Section  94 could not be interpreted or examined in isolation and that  its scope, ambit and underlying object must be ascertained in  the context of the Act in which it finds its place viz. the RP Act,  1951 and further in the context of the fact that this Act itself  was enacted in exercise of power conferred by the Articles in  Part XV titled "Elections" in the Constitution. It was the view  of this Court that "Any interpretation of Section 94 must  essentially subserve the purpose for which it is enacted. The  interpretative process must advance the basic postulate of free  and fair election for setting up democratic institution and not  retard it. Section 94 cannot be interpreted divorced from the  constitutional values enshrined in the Constitution". This Court ruled thus: - "13. Secrecy of ballot undoubtedly is an  indispensable adjunct of free and fair  elections. A voter had to be statutorily  assured that he would not be compelled to  disclose by any authority as to for whom  he voted so that a voter may vote without  fear or favour and is free from any  apprehension of its disclosure against his  will from his own lips. \005.. As Section 94  carves out an exception to Section 132 of  the Evidence Act as also to Section 95 of  the Act it was necessary to provide for  protection of the witness if he is compelled  to answer a question which may tend to  incriminate him. Section 95 provides for  grant of a certificate of indemnity in the  circumstances therein set out. A  conspectus of the relevant provisions of  the Evidence Act and Sections 93, 94 and  95 of the Act would affirmatively show that  they provide for a procedure, including the  procedure for examination of witnesses,  their rights and obligations in the trial of  an election petition. The expression  "witness" used in the section is a pointer  and further expression "other person"  extends the protection to a forum outside  courts. \005".  (emphasis supplied)

After taking note of, amongst other provisions, Section 94  and 128 of the RP Act, 1951 and the Rules 23(3), 23(5)(a) &  (b), 31(2), 38(4), 39(1), (5), (6) & (8), second proviso to 40(1),  38-A (4), 39-A (1) & (2) as contained in the Conduct of Election  Rules, 1961 ("Rules" for short) and similar other rules, this  Court found that while seeking to provide for maintaining

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secrecy of ballot, they were meant "to relieve a person from a  situation where he may be obliged to divulge for whom he has  voted under testimonial compulsion". It was then observed in  Paragraph 14 that: - "\005. Secrecy of ballot can be  appropriately styled as a postulate of  constitutional democracy. It enshrines a  vital principle of parliamentary  institutions set up under the  Constitution. It subserves a very vital  public interest in that an elector or a  voter should be absolutely free in  exercise of his franchise untrammelled  by any constraint which includes  constraint as to the disclosure. A remote  or distinct possibility that at some point  a voter may under a compulsion of law  be forced to disclose for whom he has  voted would act as a positive constraint  and check on his freedom to exercise his  franchise in the manner he freely  chooses to exercise. Therefore, it can be  said with confidence that this postulate  of constitutional democracy rests on  public policy." (emphasis supplied)

It was thus held that secrecy of ballot, a basic postulate  of constitutional democracy, was "formulated not in any  abstract situation or to be put on a pedestal and worshipped  but for achieving another vital principle sustaining  constitutional democracy viz. free and fair election". This Court found that Section 94 was meant as a  privilege of the voter to protect him against being compelled to  divulge information as to for which candidate he had voted.  Nothing prevents the voter if he chooses to open his lips of his  own free will without direct or indirect compulsion and waive  the privilege. It was noticed that the provision refers to a  "witness or other person". Thus, it is meant to protect the  voter both in the court when a person is styled as a witness  and outside the court when he may be questioned about how  he voted. It was found that no provision existed as could  expose the voter to any penalty if he voluntarily chooses to  disclose how he voted or for whom he voted. With a very clear view that ’Secrecy of ballot’ as provided  in Section 94 was mooted "to ensure free and fair elections",  the Court opined thus: - "\005If secrecy of ballot instead of ensuring  free and fair elections is used, as is done  in this case, to defeat the very public  purpose for which it is enacted, to  suppress a wrong coming to light and to  protect a fraud on the election process or  even to defend a crime viz. forgery of  ballot papers, this principle of secrecy of  ballot will have to yield to the larger  principle of free and fair elections\005.."  (emphasis supplied)

The Court, after noticing that the RP Act, 1951 is a self- contained Code on the subject of elections and reiterating that  "there is one fundamental principle which permeates through  all democratically elected parliamentary institutions viz. to set  them up by free and fair election", observed:

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"\005The principle of secrecy of ballot  cannot stand aloof or in isolation and in  confrontation to the foundation of free  and fair elections viz. purity of election.  They can co-exist but as stated earlier,  where one is used to destroy the other,  the first one must yield to principle of  purity of election in larger public interest.  In fact secrecy of ballot, a privilege of the  voter, is not inviolable and may be waived  by him as a responsible citizen of this  country to ensure free and fair election  and to unravel foul play."  (emphasis supplied)

In formulating its views, support was found in certain  observations of Kelly, C.B., in Queen v. Beardsall, [LR (1875- 76) 1 QB 452], to the following effect: -   "The legislature has no doubt provided  that secrecy shall be preserved with  respect to ballot papers and all  documents connected with what is now  made a secret mode of election. But this  secrecy is subject to a condition essential  to the due administration of justice and  the prevention of fraud, forgery, and  other illegal acts affecting the purity and  legality of elections".  (emphasis supplied)

Rejecting the apprehension that the principle of secrecy  enshrined in Section 94 of the RP Act, 1951, cannot be waived  because it was enacted in public interest and it being a  prohibition based on public policy, and while agreeing with the  contention that where a prohibition enacted is founded on  public policy courts should be slow to apply the doctrine of  waiver, it was held that the privilege of secrecy was granted for  the benefit of an individual, even if conferred to advance a  principle enacted in public interest, it could be waived because  the very concept of privilege inheres a right to waive it. The  Court thus found it an "inescapable conclusion" that the  principle of secrecy in Section 94 enacts a qualified privilege in  favour of a voter not to be compelled to disclose but if he  chooses to volunteer the information the rule is not violated. Thus, even under the elections that continue to be based  on principle of secrecy of voting, it is for the voter to choose  whether he wishes to disclose for whom he had voted or would  like to keep the secrecy intact. If he so chooses, he can give up  his privilege and in that event, the secrecy of ballot should  yield. Such an event can also happen if there is fraud, forgery  or other illegal act and the disclosure sub-serves the purpose  of administration of justice. The contention of the learned Counsel for the petitioners  is that what is significant is that when a voter is casting his  vote he should be able to do so according to his own  conscience, without any fear, pressure, or coercion. The fear  that under any law, he maybe compelled to disclose for whom  he had voted can also not interdict his choice. Assurance of  such freedom is an essence of secrecy of ballot and constitutes  an adjunct of free and fair election.  Liberty of the voter to  choose to disclose his ballot because of fraud or forgery is only  for achieving the very same purpose of free and fair election.  This liberty, however, does not affect, according to the  petitioners, in any way the general principle that secrecy of

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ballot forms a basis of free and fair election, which is  necessary for survival of democracy. Mr. Sachar also pressed in aid the decision in Charles  W. Burson v. Mary Rebecca Freeman: [(1992) 119 L.ed. 2d  5 = 504 US 119], wherein it was held that: - "Right to vote freely for the candidate of  one’s choice is of the essence of a  democratic society."  "No right is more precious in a free  country than that of having a choice in  the election of those who make the laws  under which, as good citizens, they must  live. Other rights, even the most basic,  are illusory if the right to vote is  undermined".  In the above-mentioned case, after dealing with the evil  associated with ’viva voce system’  and the failure of law to  secure secrecy which had opened the door to bribery it was  summed up as follows: "In sum, an examination of the history of  election regulation in this country reveals  a persistent battle against two evils; voter  intimidation and election fraud. After an  unsuccessful experiment with an  unofficial ballot system, all 50 States,  together with numerous other Western  democracies, settled on the same  solution: a secret ballot secured in part  by a restricted zone around the voting  compartments."

"Finally, the dissent argues that we  confuse history with necessity. Yet the  dissent concedes that a secret ballot was  necessary to cure electoral abuses.  Contrary to the dissent’s contention, the  link between ballot secrecy and some  restricted zone surrounding the voting  area is not merely timing \026 it is common  sense. The only way to preserve the  secrecy of the ballot is to limit access to  the area around the voter.  Accordingly,  we hold that some restricted zone around  the voting area is necessary to secure the  State’s compelling interest."   Mr. PP Rao, learned senior advocate, in submitting that  voting being a form of expression and a secret ballot ensures  freedom of vote, relied upon observations in Paragraph 2 of the  judgment in Lily Thomas v. Speaker, Lok Sabha & Ors.  [(1993) 4 SCC 234], wherein the Court was taking note of the  process under Article 124 (4) for removal of a Judge of the  Supreme Court. It may be mentioned here  that the  proceedings in the nature envisaged under Article 124 (4) were  held earlier in Sub-Committee on Judicial Accountability v.  Union of India [(1991) 4 SCC 699], not to be proceedings in  the Houses of Parliament and rather one that would partake of  judicial character because it is removal after inquiry and  investigation. Mr. Rao quoted the following passage from Paragraph 2  of the Judgment in aforementioned case: - "The statutory process appears to start  when the Speaker exercises duty under  the Judges Enquiry Act and comes to an  end once the Committee appointed by the  Speaker submits the report. The debate

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on the Motion thereafter in the  Parliament, the discussion and the voting  appear more to be political in nature.  Voting is formal expression of will or  opinion by the person entitled to exercise  the right on the subject or issue in  question. In Black’s Law Dictionary it is  explained as, "the expression of one’s will,  preference, or choice, formally manifested  by a member of a legislative or  deliberative body, or of a constituency or  a body of qualified electors, in regard to  the decision to be made by the body as a  whole upon any proposed measure or  proceeding or in passing laws, rules or  regulations, or the selection of an officer  or representative". Right to vote means  right to exercise the right in favour of or  against the motion or resolution. Such a  right implies right to remain neutral as  well. \005\005"  (emphasis supplied)

Mr. Sachar, while submitting 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, argued that  it is secret ballot, which is the bedrock of free and fair election.   There cannot be any distinction between a vote cast in the  election for House of the People and a vote cast in the Council  of States. He submitted that there couldn’t also be a  distinction between direct elections like that for the popular  House, at the Centre or in the State and an indirect election  like that for the office of the President of India or, closer to the  subject, election to fill the seats of "the representatives of the  States" in the Council of States.    In above context, he would cite the following passage  from S.R. Chaudhuri v. State of Punjab & Ors. [(2001) 7  SCC 126]:- "34. The very concept of responsible  government and representative  democracy signifies government by the  people. In constitutional terms, it denotes  that the sovereign power which resides in  the people is exercised on their behalf by  their chosen representatives and for  exercise of those powers, the  representatives are necessarily  accountable to the people for what they  do. The members of the Legislature, thus,  must owe their power directly or  indirectly to the people. The members of  the State Assemblies like the Lok Sabha  trace their power directly as elected by  the people while the members of the  Council of State like the Rajya Sabha owe  it to the people indirectly since they are  chosen by the representatives of the  people. The Council of Ministers of which  the Chief Minister is the head in the State  and on whose aid and advice the  Governor has to act, must, therefore, owe  their power to the people, directly or  indirectly."

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It is the submission of Mr. Sachar that the reason used  to justify the amendment is fallacious since it assumes as if  secrecy of voting is only a routine matter of procedure and that  it would also mean that Parliament could in future provide  that election to the House of the People would be by open  ballot because there is no such provision for secrecy  mentioned in the Constitution. His submission is that secrecy  of ballot is an integral part of a democratic set up and its  absence means absence of free and fair election. In A. Neelalohithadasan Nadar v. George Mascrene &  Ors. [1994 Supp (2) SCC 619], the conflict was found to be  between two principles of election law - one being "purity of  elections" and the other "secrecy of ballot". On the basis of the  former, the Kerala High Court had upset the election of the  appellant who later came before this Court. Challenge to the  order of the High Court was on the anvil of the latter principle. The factual matrix of the case would show that the  appellant and the first respondent were contesting candidates  for the Kovalam Assembly Seat in the State of Kerala. In the  counting, the appellant was declared elected on ground that  he had obtained 21 votes in excess of the first respondent. The  respondent moved the election petition mainly on ground of  impersonation and double voting by 19 specified voters. The  High Court on examining the evidence led by the parties on  the issue found that certain ballot papers deserved being  picked out from the respective ballot boxes to be rejected as  void. The ministerial work for the purpose was assigned to the  Joint Registrar of the High Court. On such exercise being  undertaken, the election petitioner entitled himself to be  declared elected instead of the appellant.  The High Court had located the void votes on the  assumption that both the contestants had bowed to the  principle embodied in Section 64(4) of the RP Act for the sake  of "purity of elections" principle and were willing partners to  have the void element identified and extricated from the voted  lot. In this view, rejecting the argument in appeal on breach of  the principle of "secrecy of ballot", this Court quoted from the  law in S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra  (supra) and observed in Paragraph 10 as under: - "The existence of the principle of "secrecy  of ballot" cannot be denied. It  undoubtedly is an indispensable adjunct  of free and fair elections. The Act  statutorily assures a voter that he would  not be compelled by any authority to  disclose as to for whom he has voted, so  that he may vote without fear or favour  and free from any apprehension of its  disclosure against his will from his own  lips. See in this connection Raghbir Singh  Gill v. Gurcharan Singh Tohra. But this  right of the voter is not absolute. It must  yield to the principle of "purity of  election" in larger public interest. The  exercise of extrication of void votes under  Section 62(4) of the Act would not in any  manner impinge on the secrecy of ballot  especially when void votes are those  which have to be treated as no votes at  all. "Secrecy of ballot" principle  presupposes a validly cast vote, the  sanctity and sacrosanctity of which must  in all events be preserved. When it is  talked of ensuring free and fair elections  it is meant elections held on the

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fundamental foundation of purity and the  "secrecy of ballot" as an allied vital  principle\005\005\005".  (emphasis supplied)

It was thus reiterated by this Court in A.  Neelalohithadasan Nadar v. George Mascrene (supra) that  out of the two competing principles, the purity of election  principle must have its way and that the rule of secrecy  cannot be pressed into service "to suppress a wrong coming to  light and to protect a fraud on the election process." The submission on the part of the Petitioner that a right  to vote invariably carries as an implied term, the right to vote  in secrecy, is not wholly correct. Where the Constitution  thought it fit to do so, it has itself provided for elections by  secret ballot, e.g., in case of election of the President of India  and the Vice-President of India. It is apt to point out that  unlike silence on the subject in the case of provisions of the  Constitution concerning election to fill the seats of the  representatives of States in the Council of States, Articles  55(3) and 66(1), that relate to the manner of election for the  offices of the President and the Vice President respectively,  provide for election by "secret ballot".  Articles 55(3) and 66(1) of the Constitution provide for  elections of the President and the Vice President respectively,  referring to voting by electoral colleges, consisting of elected  members of Parliament and Legislative Assembly of each State  for purposes of the former office and members of both Houses  of Parliament for the latter office. In both cases, it was felt  necessary by the framers of the Constitution to provide that  the voting at such elections shall be by secret ballot through  inclusion of the words "and the voting at such election shall be  by secret ballot." If the right to vote by itself implies or  postulates voting in secrecy, then Articles 55(3) and 66(1)  would not have required inclusion of such words. The  necessity for including the said condition in the said Articles  shows that "secret ballot" is not always implied. It is not  incorporated in the concept of voting by necessary implication.  It follows that for ’secret ballot’ to be the norm, it must be  expressly so provided.  To read into Article 80(4) the  requirement of a secret ballot would be to read the words "and  the voting at such election shall be by secret ballot" into the  provision. To do so would be against every principle of  Constitutional and statutory construction. In view of it not being the requirement of the  Constitution, as in the case of the President and the Vice  President, it was permissible for Parliament when passing  legislation like the Representation of the People Act to provide  otherwise, that is to choose between the system of secret ballot  or open ballot. Thus, from this angle, it is difficult to hold that  there is Constitutional infirmity in providing open ballot  system for the Council of States. Other arguments & Conclusion  It has been argued by the petitioners 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. In this context, we would say that where the law on the  subject is silent, Article 324 is a reservoir of power for the  Election Commission to act for the avowed purpose of  pursuing the goal of a free and fair election, and in this view it  also assumes the role of an adviser. But the power to make

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law under Article 327 vests in the Parliament, which is  supreme and so, not bound by such advice. We would reject  the argument by referring to what this Court has already said  in Mohinder Singh Gill (supra) and what bears reiteration  here is that the limitations on the exercise of "plenary  character" of the Election Commission include one to the effect  that "when Parliament or any State Legislature has made valid  law relating to or in connection with elections, the  Commission, shall act in conformity with, not in violation of,  such provisions". The submission of learned Counsel for the Writ  Petitioners is that the amendment violates the Constitution,  which recognize the right to vote as a constitutional right, a  facet of Article 19(1)(a) and the secret ballot preserving this  right.  Further that secret ballot is an adjunct of free and fair  election and therefore, a part of a Parliamentary democracy  and, therefore, taking away of voting right by secret ballot  affects the basic feature of the Constitution. They argue that  the impugned amendment was not called for. The amendment, according to the Counsel for the  petitioners, seems to proceed on the basis that it is only the  leadership of the political parties that is to be trusted rather  than the average legislator, which view is not very  complimentary to the respect and dignity of the legislators,  besides being factually unacceptable.  In above context, the Counsel referred to the following  words of Dr. B.R. Ambedkar on the issue as to how the dignity  of an individual should be upheld in the political system: - "The second thing we must do is to  observe the caution which John Stuart  Mill has given to all who are interested in  the maintenance of democracy, namely,  not "to lay their liberties at the feet of  even a great man, or to trust him with  powers which enable him to subvert their  institutions".  There is nothing wrong in  being grateful to great men who have  rendered life-long services to the country.  But there are limits to gratefulness. As  has been well said by the Irish patriot  Daniel O’Connel, no man can be grateful  at the cost of his honour, no women can  be grateful at the cost of her chastity and  no nation can be grateful at the cost of its  liberty. This caution is far more necessary  in the case of India than in the case of  any other country. For in India, Bhakti or  what may be called the path of devotion  or hero-worship, plays a part in its  politics of any other country in the world.  Bhakti in religion may be a road to the  salvation of the soul.  But, in politics,  Bhakti or hero-worship is a sure road to  degradation and to eventual  dictatorship."

On the other hand, the respondents supporting the  impugned amendment would argue that the Secrecy of voting  had led to corruption and cross voting. They would point out  that voting on all issues in the legislatures, including the  Council of States and the Legislative Assemblies, is invariably  open and not by secret ballot.  The election of a representative  is now at par with other important matters. They would  concede that the common man participating in direct election

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as voter exercising his vote in a polling booth requires the  safeguard of secrecy. But elected members of legislative  assemblies, as per the learned Counsel, are expected to have  stronger moral fiber and public courage. The learned Attorney General pointed out that the  Statement of Objects and Reasons of the impugned Act refers  to the Report of the Ethics Committee of Parliament. The  Ethics Committee in its First Report of 08th December 1998  had recommended that the issue relating to open ballot  system for election to the Rajya Sabha be examined.  The issue  again arose in the wake of allegations of money power made in  respect of biennial elections to the Council of States held in  2000. The relevant observations of the Ethics Committee have  already been extracted, in extenso, in earlier part of this  judgment. Suffice it to note here again that the committee took  cognizance of "the emerging trend of cross voting in the  elections for Rajya Sabha" and allegations that "large sums of  money and other considerations encourage the electorate" for  such purpose "to vote in a particular manner leading  sometimes to the defeat of the official candidates belonging to  their own political party". The Committee commended "holding  the elections to Rajya Sabha and the Legislative Councils in  States by open ballot" so as to remove the mischief played by  "big money and other considerations" with the electoral  process. It is the submission of the learned Counsel for the  petitioners that the observations of the Ethics Committee on  which the impugned amendment was brought about not only  fail to justify the amendment but run counter to the  Constitutional scheme of conducting free and fair election  which is necessary for preserving the democracy.  On the  other hand, the Attorney General submitted 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. Mr. Sachar has pointed out that the Conduct of Election  Rules, 1961 were framed and notified in exercise of powers  delegated by the RP Act, 1951. In the wake of the impugned  amendment of Sections 59, 94 and 128 of RP Act, 1951, the  said Rules have also been amended by the Central  Government through S.O. 272 (E) dated 27.02.2004. This  amendment has resulted in Rule 39-AA being added to the  Rules for conduct of poll in election to the Council of States  provided in Part \026 VI. Earlier, Rule 39-A had been added to the  said Rules in furtherance of the system of secret ballot. Rule 39-A may be first taken note of. It reads as under: - " 39-A.  Maintenance of secrecy of  voting by electors within polling  station and voting procedure. \026 (1)  Every elector, to whom a ballot paper has  been issued under rule 38-A or under  any other provision of these rules, shall  maintain secrecy of voting within the  polling station and for that purpose  observe the voting procedure hereinafter  laid down.  

(2)     The elector on receiving the ballot  paper shall forthwith \026 (a)     proceed to one of the voting  compartments; (b)     record his vote in accordance  with sub-rule (2) of rule 37-A,

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with the article supplied for the  purpose; (c)     fold the ballot paper so as to  conceal his vote; (c)     if required, show to the  Presiding Officer, the  distinguished mark on the ballot  paper; (e)     insert the folded paper into the  ballot box, and (f)     quit the polling station.

(3)     every elector shall vote without  undue delay. (4)     No elector shall be allowed to enter a  voting compartment when another elector  is inside it. (5)     If an elector to whom a ballot paper  has been issued, refuses, after warning  given by the Presiding Officer to observe  the procedure as laid down in sub-rule  (2), the ballot paper issued to him shall,  whether he has recorded his vote thereon  or not, be taken back from him by the  Presiding Officer or a polling officer under  the direction of the Presiding Officer. (6)     After the ballot paper has been  taken back, the Presiding Officer shall  record on its back the words "Cancelled :  voting procedure violated" and put his  signature below those words. (7)     All the ballot papers on which the  words "Cancelled : voting procedure  violated" are recorded, shall be kept in a  separate cover which shall bear on its  face the words "Ballot papers :voting  procedure violated". (8)     Without prejudice to any other  penalty to which an elector, from whom a  ballot paper has been taken back under  sub-rule (5), may be liable, vote, if any,  recorded on such ballot paper shall not  be counted."     Rule 39-AA applied to such elections by virtue of Rule 70  reads as under: - "Information regarding casting of  votes. - (1) Notwithstanding anything  contained in Rule 39-A, the presiding  officer shall, between the period when an  elector being a member of a political party  records his vote on a ballot paper and  before such elector inserts that ballot  paper into the ballot box, allow the  authorized agent of that political party to  verify as to whom such elector has cast  his vote:         Provided that if such elector refuses  to show his marked ballot paper to the  authorized agent of his political party, the  ballot paper issued to him shall be taken  back by the presiding officer or a polling  officer under the direction of the  presiding officer and the ballot paper so  taken back shall then be further dealt

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with in the manner specified in sub-rules  (6) to (8) of Rule 39-A as if such ballot  paper had been taken back under sub- rule (5) of that rule.

(2) Every political party, whose member  as an elector casts a vote at a polling  station, shall, for purposes of sub-rule  (1), appoint, in Form 22-A, two  authorized agents.

(3) An authorized agent appointed under  sub-rule (2) shall be present throughout  the polling hours at the polling station  and the other shall relieve him when he  goes out of the polling station or vice  versa."  

Since Rule 39-AA is required to be read with Rule 39-A,  the former is necessarily an exception to the general rule in all  other elections conducted under the RP Act, 1951 by the  Election Commission.  The norm has been, prior to the  impugned amendment, that the voting shall be by a secret  ballot, in which all concerned, including the electors are  expected to preserve the sanctity of the vote by keeping it  secret.  But as already observed, the privilege to keep the vote  secret is that of the elector who may choose otherwise; that is  to say, he may opt to disclose the manner in which he has cast  his vote but he cannot be compelled to disclose the manner in  which he has done so, except in accordance with the law on  the subject which ordinarily comes into play only in case the  election is challenged by way of election petition before the  High Court.  In the case of election to the Council of States, in  the post amendment scenario, the norm has undergone a  change, in that the political party to which a particular  member of the Legislative Assembly of the State belongs is  entitled to ascertain through formally appointed authorized  agent deputed at the polling station the manner in which the  member in question, who is an elector for such purposes, has  exercised his franchise. The exception applies only to such  members of the Legislative Assembly, as are members of a  political party and not to all members across the board. The  voter at such an election may refuse to show his vote to the  authorized agent of his political party, but in such an event he  forfeits his right to vote, which is cancelled by the Presiding  Officer of the poling station on account of violation of the  election procedure.   The effect of the amended Rules, thus, is 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. There is, therefore, a  compulsion on the voter to show his vote. But then, the above rules are only in furtherance of the  object sought to be achieved by the impugned amendment.  Rather, the rules show, the open ballot system put in position  does not mean open to one and all. It is only the authorized  agent of the political party who is allowed to see and verify as  to whom such an elector casts his vote. The prerogative  remains with the voter to choose as to whether or not to show  his vote to the authorized agent of his party.  Voting at elections to the Council of States cannot be

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compared with a general election. In a general election, the  electors have to vote in a secret manner without fear that their  votes would be disclosed to anyone or would result in  victimization. There is no party affiliation and hence the choice  is entirely with the voter. This is not the case when elections  are held to the Council of States as the electors are elected  members of the legislative assemblies who in turn have party  affiliations. The electoral systems world over contemplate variations.   No one yardstick can be applied to an electoral system.  The  question whether election is direct or indirect and for which  house members are to be chosen is a relevant aspect.  All over  the world in democracies, members of the House of  Representatives are chosen directly by popular vote.  Secrecy  there is a must and insisted upon; in representative  democracy, particularly to upper chamber, indirect means of  election adopted on party lines is well accepted practice. In "Australian Constitutional Law" [2nd Edition) by  Fajgenbaum and Hanks, it is stated at page 51, that:

"Section 24 of the Australian Constitution  embodies three principles, i.e.,  representative democracy, direct popular  election and character of the House of  representative democracy predicates  enfranchisement of the electors, the  existence of an electoral system capable  of giving effect to the selection of their  representatives and bestowal of legislative  functions upon representatives selected.   The extent of franchise comes under the  heading "enfranchisement of electors".   The electoral system with innumerable  details including voting methods and  qualifications of representatives as well  as proportional representation in different  forms etc. are maters in which there  cannot exist a set formula said to be  consistent with the representative  democracy.  The wide range of legislative  functions which a legislature may  possess must be given due weightage in  such matters.  Representative democracy  covers an entire spectrum of political  institutions, each differing in countless  respects.  However, at no point of time  within such spectrum does there exist a  single requirement so essential so as to  be determinative of the existence of  Representative Democracy.  Section 24 of  the Australian Constitution provides for  direct choice of members by the people.   The existence of variations  in the  number of persons or voters in the  electoral division within a State does not  detract from the description of the House  of Representatives or the Senate or the  existing electoral system.  Proportionality  is an element of "choosing of members"  whereas qualification is different from the  concept of ’choosing of members’.   Section 30 of the Australian Constitution  refers to qualifications of electors.   Section 24 of the Australian Constitution  deals with choosing of members in which

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there is an element of proportionality.   Proportional representation is the system  of voting." (emphasis supplied)

                Sections 8, 24, 30 and 128 of the Australian Constitution  are as under: "8.     The qualification of electors of  senators shall be in each State that  which is prescribed by the Constitution,  or by the Parliament, as the qualification  for electors of members of the House of  Representatives but in the choosing of  senators each elector shall vote only  once. 24.     The House of Representatives shall  be composed of members directly chosen  by the people of the Commonwealth, and  the number of such members shall be, as  nearly as practicable, twice the number of  the senators.

       The number of members chosen in  the several States shall be in proportion  to the respective numbers of their people,  and shall, until the Parliament otherwise  provides, be determined, whenever  necessary, in the following manner:-

(i)     A quota shall be ascertained by  dividing the number of the people of the  Commonwealth, as shown by the latest  statistics of the Commonwealth, by twice  the number of the senators;

(ii)    The number of members to be  chosen in each State shall be determined  by dividing the number of the people of  the State, as shown by the latest  statistics of the Commonwealth, by the  quota; and if on such division there is a  remainder greater than one-half of the  quota, once more member shall be  chosen in the State.

But notwithstanding anything in  this section, five members at least  shall be chosen in each Original  State.

30.     Until the Parliament otherwise  provides, the qualifications of electors of  members of the House of Representatives  shall be in each State that which is  prescribed by the law of the State as the  qualification of electors of the more  numerous House of Parliament of the  State; but in the choosing of members  each elector shall vote only once.

128.    This Constitution shall not be  altered except in the following manner:

       The proposed law for the alteration  thereof must be passed by an absolute

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majority of each House of the Parliament,  and n not less than two, nor more than  six months after its passage through both  Houses the proposed law shall be  submitted in each State and Territory to  the electors qualified to vote for the  election of members of the House of  Representatives.

       But if either House passes any such  proposed law by an absolute majority,  and the other House rejects or fails to  pass it or passes it with any amendments  to which the first-mentioned House will  not agree, and if after an interval of three  months the first-mentioned House in the  same or the next session again passes  the proposed law by an absolute majority  with or without any amendment which  has been made or agreed to by the other  House, and such other House rejects or  fails to pass it or passes it with any  amendment to which the first-mentioned  House will not agree, the Governor  General may submit the proposed law as  last proposed by the first-mentioned  House, and either with or without any  amendments subsequently agreed to by  both Houses, to the electors in each State  and Territory qualified to vote for the  election of the House of Representatives.

       When a proposed law is submitted  to the electors the vote shall be taken in  such manner as the Parliament  prescribes.  But until the qualification of  electors of members of the House of  Representatives becomes uniform  throughout the Commonwealth, only one- half the electors voting for and against  the proposed law shall be counted in any  State in which adult suffrage prevails.

       And if in a majority of the States a  majority of the electors voting approve the  proposed law, and if a majority of all the  electors voting also approve the proposed  law, it shall be presented to the  Governor-General for the Queen’s Assent.

       No alternation diminishing the  proportionate representation of any State  in either House of the Parliament, or the  minimum number of representatives of a  State in the House of Representative, in  increasing, diminishing, or otherwise  altering the limits of the State, or in any  manner affecting the provisions of the  Constitution in relation thereto, shall  become law unless the majority of the  electors voting in that State approve the  proposed law.

       In this section, "Territory" means  any territory referred to in section one

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hundred and twenty-two of this  Constitution in respect of which there is  in force a law allowing its representation  in the House of Representatives."

Section 24 is quite similar to Article 80(4) and Section 30  to Article 84 of our Constitution. In the case of Judd v. Mckeon reported in (1926) 38  CLR 380 at page 385, it is stated as follows:

"The extent of franchise in a democracy is  a matter of fundamental importance.  The  purpose behind section 24 of the  Australian Constitution is to ensure that  the members of the Senate are chosen  directly by popular vote and not by  indirect means, such as, by the  parliament or the legislative assembly or  by the executive or by an electoral  college.  Section 24 of the Australian  Constitution says that the members of  the Senate shall be chosen by the people,  which means, by people qualified to vote."  (emphasis supplied)

In the case of King v. James reported in (1972) 128 CLR  221 at page 229, it has been held as follows:

"The fact that the world ’people’ is used in  section 24 of the Australian Constitution  in contra-distinction to the word "elector"   in Sections 8, 30 and 128 shows that the  framers of the Constitution drafted  Section 24 with the idea of providing in  that section the manner of choosing  rather than emphasizing the people who  were to choose." (emphasis supplied)

In indirect election, when law provides for open ballot  system; to decide whether it amounts to a denial to vote or it  ensures party discipline, useful reference can be made to the  judgment of Supreme Court of South Africa in the case of   New National Party of South Africa  v. Government of the  Republic of South Africa & Anr. reported in 1999 (3) SA  191, head note whereof reads as under:

"Held (per Yacoob J; Chaskalson P. Langa  DP, Ackermann J, Goldstone J, Madala J.  Mokgoro J and Sachs J Concurring) that  the right to vote was indispensable to,  and empty without, the right to free and  fair elections; the latter gave content and  meaning to the former.  The right to free  and fair elections underlined the  importance of the exercise of the right to  vote and the requirement that every  election should be fair had implications  for the way in which the right to vote  could be given more substantive content  and legitimately exercised.  Two of these  implications were material for the present  case: each citizen entitled to do so must

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note vote more than once in any election  and any person not entitled to vote must  not be permitted to do so.  The extent to  which these deviations occurred would  have an impact on the fairness of the  election.  This meant that the regulation  of the exercise of the right to vote was  necessary so that these deviations could  be eliminated or restricted in order to  ensure proper implementation of the right  to vote.  (Paragraph (12) at 201A/B-D)  Held, further (per Yacoob J; Chaskalson  P, Langa DP, Ackermann J, Goldstone J,  Madala J, Mokgoro J and Sachs J  concurring; O’Regan J dissenting), that  the right to vote contemplated by section  19(3) of the Constitution was therefore a  right to vote in free and fair elections in  terms of an electoral system prescribed  by national legislation which complied  with the requirements laid down by the  Constitution.  The details of the system  were left to Parliament.  The national  legislation which prescribed the electoral  system was the Electoral Act.  (Paragraph  (14) at 202C/D-D/E)"  (emphasis supplied)

It shows that the right to vote in ’free and fair elections’ is  always in terms of an electoral system prescribed by national  legislation.   The right to vote derives its colour from the right  to ’free and fair elections’; that the right to vote is empty  without the right to ’free and fair elections’.  It is the concept of  ’free and fair elections’ in terms of an electoral system which  provides content and meaning to the ’right to vote’.  In other  words, ’right to vote’ is not an ingredient of the free and fair  elections.  It is essential but not the necessary ingredient.   

In the aforesaid case, the dispute was whether the  Electoral Act could prescribe only one specific means as proof  of enrolment on the voters roll for voting.  Under Electoral Act,  I.D. card was prescribed as the only proof of enrolment on the  voters roll.  This was challenged.  Rejecting the objection, the  Constitutional Court through Yacoob, J, on behalf of the  majority held:

[10]    The aspect of the Electoral Act in  issue regulate the way in which citizens  must register and vote.  The question  which must be answered is whether these  requirements constitute an infringement  of the right to vote.  This can only  properly be done in the context of an  analysis of the nature, ambit and  importance of the right in question, the  effect and importance of other related  constitutional rights, the inter- relationship of all these rights, the  importance of the need for an effective  exercise of the right to vote and the  degree of regulation required to facilitate  the effective exercise of the right.

[11]    The Constitution effectively confers

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the right to vote for legislative bodies at  all levels of government only on those  South African citizens who are 18 years  or older.  It must be emphasized at this  stage that the right to vote is not  available to everyone in South Africa  irrespective of age or citizenship.  The  importance of the right to vote is self- evident and can never be overstated.   There is however no point in belabouring  its importance and it is sufficient to say  that the right is fundamental to a  democracy for without it there can be no  democracy.  But the mere existence of the  right to vote without proper arrangements  for its effective exercise does nothing for a  democracy; it is both empty and useless.

[12]    The Constitution takes an important  step in the recognition of the importance  of the right to exercise the vote by  providing that all South African citizens  have the right to free, fair and regular  elections.  It is to be noted that all South  African citizens irrespective of their age  have a right to these elections.  The right  to vote is of course indispensable to, and  empty without, the right to free and fair  elections; the latter gives content and  meaning to the former.  The right to free  and fair elections underlines the  importance of the exercise of the right to  vote and the requirement that every  election should be fair has implications  for the way in which the right to vote can  be given more substantive content and  legitimately exercised.  Two of these  implications are material for this case:  each citizen entitled to do so must note  vote more than once in any election; any  person not entitled to vote must not be  permitted to do so.  The extent to which  these deviations occur will have an  impact on the fairness of the election.   This means that the regulation of the  exercise of the right to vote is necessary  so that these deviations can be  eliminated or restricted in order to ensure  the proper implementation of the right to  vote.

[13]    The Constitution recognizes that it  is necessary to regulate the exercise of  the right to vote so as to give substantive  content to the right.  Section 1(d)  contemplates the existence of a national  common voters roll.  Sections 46(1),  105(1), and 157(5) of the Constitution all  make significant provisions relevant to  the regulation of the exercise of the right  to vote.  Their effect is the following:

(a)     National, provincial and municipal  elections must be held in terms of an  electoral system which must be

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prescribed by national legislation.

(b)     The electoral system must, in  general, result in proportional  representation.

(c)     Elections for the national assembly  must be based on the national common  voters roll.

(d)     Elections for provincial legislatures  and municipal councils must be based on  the province’s segment and the  municipality’s segment of the national  common voters roll respectively.

       The existence of, and the proper  functioning of a voters roll, is therefore a  constitutional requirement integral both  to the elections mandated by the  Constitution and to the right to vote in  any of them.

       [15]    The requirement that only  those persons whose names appear on  the national voters roll may vote, renders  the requirement that South African  citizens must register before they can  exercise their vote, a constitutional  imperative.  It is a constitutional  requirement of the right to vote, and not  a limitation of the right.

       [16]    The process of registration and  voting needs to be managed and  regulated in order to ensure that the  elections are free and fair.  The creation  of a Commission to manage the elections  is a further essential though, not  sufficient ingredient in this process.  In  order to understand the enormity of the  problem, one has just to picture the  specter of millions of South Africans  arriving at registration points or voting  stations armed with all manner of  evidence and that they are entitled to  register or to vote, only to have the  registration or electoral officer sift  through this evidence in order to  determine whether or not each of such  persons is entitled to register or to vote.    It is to avoid this difficulty that the  Electoral Act makes detailed provisions  concerning registration, voting and  related matters including the way in  which voters are to identify themselves in  order to register on the common voters  roll and to vote.

       [17]    The detailed provisions of the  Electoral Act serve the important purpose  of ensuring that those who qualify for the  vote can register as voters, that the  names of these persons are placed on a  national common voters roll, and that

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each such person exercises the right to  vote only once.  Some form of easy and  reliable identification is necessary to  facilitate this process.  It is in this context  that the statutory provision for the  production of certain identity documents  must be located.  The absence of such a  provision could render the exercise of the  right to vote nugatory and have grave  implications for the fairness of the  elections.  The legislature is therefore  obliged to make such a provision.                  The nature of the enquiry

       [18]    The appellant did not dispute  that proof of identity and citizenship for  registration, and proof of enrolment on  the voters roll for voting, are necessary  components of the electoral system  contemplated by the Constitution.  What  was disputed was whether the Electoral  Act could prescribe that the only means  for such proof was a bar-coded ID or TRC  for registering and a bar-coded ID or TIC  for voting.  The submissions on behalf of  the appellant were advanced at two  levels.  In the first place, it was contended  that the relevant provisions on their face  and evaluated in relation to the  constitutional right to vote infringe this  right.  The question of the facial  inconsistency of the impugned provisions  with the right to vote and the right to free  and fair elections as encapsulated in the  Constitution must be addressed both in  relation to the rationality of the provision  and to whether it infringes the right.   Although it was specifically mentioned in  response to questions by a member of the  Court that the appellant relied on facial  inconsistency, no substantial argument  was advanced in support of such a  contention.  Secondly, the argument was  that the consequences of the  documentary requirements constituted a  denial of the right to vote to millions of  South African citizens who were not in  possession of the bar-coded ID.  Many of  these persons (millions of people), so it  was argued, would not be able to vote for  a variety of inter-related reasons.  The  submissions were that the Department of  Home Affairs (the department), charged  with the responsibility of issuing these  documents, did not have the capacity to  produce them timeously, that the cost of  acquiring the documents constituted a  real impediment and that potential voters  were not aware, or had not been made  sufficiently aware, of the documentary  requirements to enable them to apply for  the documents in time.  It was contended  in this context that South African citizens  who were in possession of identity

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documents issued pursuant to legislation  which was operative before the 1986 Act  came into force ought to have been  allowed to use them.

       [19]    It is to be emphasized that it is  for Parliament to determine the means by  which voters must identify themselves.   This is not the function of a court.  But  this does not mean that Parliament is at  large in determining the way in which the  electoral scheme is to be structured.   There are important safeguards aimed at  ensuring appropriate protection for  citizens who desire to exercise this  foundational right.  The first of the  constitutional constraints placed upon  Parliament is that there must be a  rational relationship between the scheme  which it adopts and the achievement of a  legitimate governmental purpose.   Parliament cannot act capriciously or  arbitrarily.  The absence of such a  rational connection will result in the  measure being unconstitutional.  An  objector who challenges the electoral  scheme on these grounds bears the onus  of establishing the absence of a legitimate  government purpose, or the absence of a  rational relationship between the  measure and that purpose.

       [20]    A second constraint is that the  electoral scheme must not infringe any of  the fundamental rights enshrined in  chapter 2 of the Constitution.  The onus  is once again on the party who alleges an  infringement of the right to establish it.   The contention in this appeal is that the  impugned provisions of the Electoral Act  constitute a denial of the right to vote to a  substantial number of South African  citizens.  Any scheme designed to  facilitate the exercise of this right carries  with it the possibility that some people  will not comply with its provisions.  But  that does not make the scheme  unconstitutional.  The decisive question  which arises for consideration in this  case is the following: when can it  legitimately be said that a legislative  measure designed to enable people to  vote in fact results in a denial of that  right?  What a party alleging that an Act  of Parliament has infringed the right to  vote is required to establish in order to  succeed will emerge in the process of  answering this question.

       [21]    The exercise to be carried out  by a court entails an evaluation of the  consequences of a statutory provision in  the process of its implementation which  occurs at some time in the future.  It is  necessary, at the outset of the enquiry, to

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determine the nature of the consequence  that is impermissible.  The consequence  that will be impermissible in the present  case can best be determined by focusing  on the question as to what Parliament  must achieve.  Parliament must ensure  that people who would otherwise be  eligible to vote are able to do so if they  want to vote and if they take reasonable  steps in pursuit of the right to vote.  More  cannot be expected of Parliament.  It  follows that an impermissible  consequence will ensue if those who wish  to vote and who take reasonable steps in  pursuit of the right, are unable to do so.

       [22]    It is necessary to determine the  circumstances that are to be taken into  account in deciding whether the  impugned provisions infringe the right to  vote.  There are two possibilities.  A court  can make an evaluation in the light of the  circumstances pertaining at the time the  provisions were enacted, or those which  exist at some later date when the  constitutionality of the provisions are  challenged.  This Court has adopted an  objective approach to the issue of the  constitutionality of statutory provisions.   A pre-existing law becomes invalid to the  extent of its inconsistency with the  Constitution, the moment the  Constitution comes into force.  It is  irrelevant that this Court may declare it  to be inconsistent only several years  later.  Similarly, a statutory provision  which is passed after the constitution  comes into operation is invalid to the  extent of its inconsistency with the  Constitution, the moment the provision is  enacted.  This is so regardless of the fact  that its invalidity is only attacked, or the  concrete circumstances that form the  basis of the attack only become apparent,  long after its enactment.  Consistent with  this objective approach to statutory  invalidity, the circumstances which  become apparent at the time when the  validity of the provision is considered by a  court are not necessarily irrelevant to the  question of its consequential invalidity.   However, a statute cannot have limping  validity, valid one day, invalid the next,  depending upon changing circumstances.   Its validity must ordinarily be determined  as at the date it was passed.   Nevertheless, the implementation of an  Act which passes constitutional scrutiny  at the time of its enactment, may well  give rise to a constitutional complaint, if,  as a result of circumstances which  become apparent later, its  implementation would infringe a  constitutional right.  In assessing the  validity of such a complaint, it becomes

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necessary to determine whether the  proximate cause of the infringement of  the right is the statutory provision itself,  or whether the infringement of the right  has been precipitated by some other  cause, such as the failure of a  governmental agency to fulfill its  responsibilities.  If it is established that  the proximate cause of the infringement,  in the light of the circumstances, lies in  the statutory provision under  consideration, that provision infringes the  right.  This is not a departure from the  objective approach to unconstitutionality.   It is merely a recognition of the fact that a  constitutional defect in a statutory  provision is not always readily apparent  at the time of its enactment, but may  only emerge later when a concrete case  presents itself for adjudication.

       [23]    It is necessary to apply an  objective test in deciding whether the Act  of Parliament, which makes provision for  the electoral scheme challenged in the  present case, is valid.  Parliament is  obliged to provide for the machinery,  mechanism or process that is reasonably  capable of achieving the goal of ensuring  that all persons who want to vote, and  who take reasonable steps in pursuit of  that right, are able to do so.  I conclude,  therefore, that the Act would infringe the  right to vote if it is shown that, as at the  date of the adoption of the measure, its  probable consequence would be that  those who want to vote would not have  been able to do so, even though they  acted reasonably in pursuit of the right.   Any scheme which is not sufficiently  flexible to be reasonably capable of  achieving the goal of ensuring that people  who want to vote will be able to do so if  they act reasonably in pursuit of the  right, has the potential of infringing the  right.  That potential becomes apparent  only when a concrete case is brought  before a court.  The appellant bears the  onus of establishing that the machinery  or process provided for is not reasonably  capable of achieving that purpose.  As  pointed out in the previous paragraph, it  might well happen that the right may be  infringed or threatened because a  governmental agency does not perform  efficiently in the implementation of the  statute.  This will not mean that the  statute is invalid.  The remedy for this  lies elsewhere.  The appellant must fail if  it does not establish that the right is   infringed by the impugned provisions in  the manner described earlier.  This Court  held in August and Another v. The  Electoral Commission and Others that all  prisoners would have been effectively

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disenfranchised without constitutional or  statutory authority by the system of  voting and registration which had been  put into place by the Commission.  This  case is different, however, because the  alleged disenfranchisement is said to  arise from the terms of the statute and  not from the acts or omissions of the  agency charged with implementing the  statute.

       [24]    O’Regan J in her dissenting  judgment measures the importance of the  purpose of the statutory provision in  relation to its effect, and asks the  question whether the electoral scheme is  reasonable.  She goes on to conclude that  the scheme is not reasonable, and for  that reason, to hold that the relevant  provisions of the Electoral Act are  inconsistent with the Constitution.  In my  view this is not the correct approach to  the problem.  Decisions as to the  reasonableness of statutory provisions  are ordinarily matters within the  exclusive competence of Parliament.  This  is fundamental to the doctrine of  separation of powers and to the role of  courts in a democratic society.  Courts do  not review provisions of Acts of  Parliament on the grounds that they are  unreasonable.  They will do so only if  they are satisfied that the legislation is  not rationally connected to a legitimate  government purpose.  In such  circumstances, review is competent  because the legislation is arbitrary.   Arbitrariness is inconsistent with the rule  of law which is a core value of the  Constitution.  It was within the power of  Parliament to determine what scheme  should be adopted for the election.  If the  legislation defining the scheme is  rational, the Act of Parliament cannot be  challenged on the grounds of  "unreasonableness".  Reasonableness will  only become relevant if it is established  that the scheme, though rational, has the  effect of infringing the right of citizens to  vote.  The question would then arise  whether the limitation is justifiable under  the provisions of section 36 of the  Constitution, and it is only as part of this  section 36 enquiry that reasonableness  becomes relevant.  It follows that it is  only at that stage of enquiry that the  question of reasonableness has to be  considered.  The first question to be  decided, therefore, is whether the scheme  prescribed by the Electoral Act is  rational.

       Rationality of the statutory  provisions

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       [25]    It is, in my view, convenient to  determine whether the impugned  provisions are rationally related to a  legitimate governmental purpose in two  stages.  The first part of the enquiry is  whether a facial analysis of the provisions  in issue, in relation to the Constitution,  has been shown to lack rationality; the  second is whether these provisions can  be said to be arbitrary or capricious in  the light of certain circumstances existing  as at the date of the adoption of the  statute.

       Effect of the relevant circumstances

       [28]    The facial analysis  demonstrates that the statutory  provisions asserting the disputed  documentary requirements are rationally  related to the legitimate governmental  purpose of ensuring the effective exercise  of the right to vote.  I will now examine  whether the disputed measures can be  said to be arbitrary or capricious in the  light of the circumstances which,  according to the appellant, were  relevant."

It is, therefore, evident that the right to vote is a concept  which  has to yield to a concept of the attainment of free and  fair elections.  The nature of elections, namely, direct or  indirect, regulates the concept of right to vote.  Where  elections are direct, secret voting is insisted upon.  Where  elections are indirect and 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.  In the case  of direct elections, members are chosen directly by popular  vote which is not the case under indirect elections.  Therefore,  it cannot be said that the concept of open ballot would defeat  the attainment of free and fair elections.  In the present case,  the question of denial of right to vote would be self inflicted  only on the member of the Legislative Assembly declining to  show his vote to the authorized representative of the party.  If  a MLA casts a vote in favour of any person he thinks  appropriate and shows his vote to the authorized  representative of the political party to which he belongs, Rules  do not contemplate cancellation of such a vote. It cannot be forgotten that the existence of political  parties is an essential feature of our Parliamentary democracy  and that it can be a matter of concern for Parliament if it finds  that electors were resorting to cross voting under the garb of  conscience voting, flouting party discipline in the name of  secrecy of voting.  This would weaken the party discipline over  the errant Legislators. Political parties are the sine qua non of  Parliamentary democracy in our country and the protection of  party discipline can be introduced as an essential feature of  the purity of elections in case of indirect elections. Parliamentary Democracy and multi party system are an  inherent part of the basic structure of Indian Constitution. It  is political parties that set up candidates at an election who  are predominantly elected as Members of the State  Legislatures. The context in which General Elections are held,

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secrecy of the vote is necessary in order to maintain the purity  of the Election system.  Every voter has a right to vote in a free  and fair manner and not disclose to any person how he has  voted.  But here we are concerned with a voter who is elected  on the ticket of a political party.  In this view, the context  entirely changes.   That the concept of ’constituency-based representation’ is  different from ’proportional representation’ has been  eloquently brought out in the case of United Democratic  Movement v. President of the Republic of South Africa and  Others reported in 2003 (1) SA 495, where the question  before the Supreme Court was: whether ’floor crossing’ was  fundamental to the Constitution of South Africa.  In this  judgment the concept of proportional representation vis-‘-vis  constituency-based representation is highlighted.  The  relevant passages from the said judgment read as under:

"24.    The first question that has to be  considered is the meaning of the phrase  "a multi-party system of democratic  government" in the context of section 1(d)  of the Constitution.  It clearly excludes a  one-party state, or a system of  government in which a limited number of  parties are entitled to compete for office.   But is that its only application?

25.     The phrase is not a term of Article   We were referred to no authority on  political science or the South African  Constitution that offers a meaning of  these words.  Nor can any assistance be  gleaned from commentaries on the South  African Constitution.  Most authors seem  to regard the meaning of the phrase to be   self-evident and to require no explanation  beyond the words themselves.

26.     A multi-party democracy  contemplates a political order in which it  is permissible for different political  groups to organize, promote their views  through public debate and participate in  free and fair elections.  These activities  may be subjected to reasonable  regulation compatible with an open and  democratic society.  Laws which go  beyond that, and which undermine multi- party democracy, will be invalid.  What  has to be decided, therefore, is whether  this is the effect of the disputed  legislation.

27.     The applicants contend that the  proportional representation system is an  integral part of the Constitution, that the  purpose of the ante-defection provision is  to protect this system and that any  interference with these provisions is an  interference with the multi-party system  of democratic government contemplated  by section 1(d) of the Constitution.

       Proportional Representation

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28.     In support of this contention  reliance was placed by the applicants on  constitutional principle VIII which was  one of the principles with which the  Constitution had to comply.   Constitutional principle VIII provides:

       "There shall be representative  government embracing multi-party  democracy, regular elections, universal  adult suffrage, a common voters’ roll,  and, in general, proportional  representation."

29.     Significantly, however, section 1(d)  of the Constitution incorporates all the  provisions of constitutional principle VIII,  save for the last requirement that refers  to proportional representation.  If it had  been contemplated that proportional  representation should be one of the  founding values it is difficult to  understand why those words were  omitted from section 1(d).  Textually,  proportional representation is not  included in the founding values.  Nor, in  our view, can it be implied as a  requirement of multi-party democracy.   There are many systems of multi-party  democracy that do not have an electoral  system based on proportional  representation.   

30.     The applicants contend, however,  that an anti-defection provision is an  essential component of an electoral  system based on proportional  representation.  This, so the contention  goes, is necessary to ensure that the  results of an election are not affected by  the defection of persons who gained their  seats in a legislature solely because of  their position on the party list.  It is the  party, and not the members, which is  entitled to the seats, and if a member is  allowed to defect, that distorts the  proportionality that the system was  designed to achieve.

31.     There is a tension between the  expectation of voters and the conduct of  members elected to represent them.   Once elected, members of the legislature  are free to take decisions, and are not  ordinarily liable to be recalled by voters if  the decisions taken are contrary to  commitments made during the election  campaign.

32.     It is often said that the freedom of  elected representatives to take decisions  contrary to the will of the party to which  they belong is an essential element of  democracy.  Indeed, such an argument

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was addressed to this Court at the time of  the certification proceedings where  objection was taken to the transitional  ante-defection provision included in  Schedule 6 to the Constitution.  It was  contended that submitting legislators to  the authority of their parties was inimical  to

"accountable, responsive, open,  representative and democratic  government; that universally accepted  rights and freedoms, such as freedom of  expression, freedom of association, the  freedom to make political choices and the  right to stand for public office and, if  elected, to hold office, are undermined;  and that the anti-defection clause  militates against the principles of  ’representative government’, ’appropriate  checks and balances to ensure  accountability, responsiveness and  openness’ and ’democratic  representation’."

33.     This Court rejected that submission  holding:

"Under a list system of proportional  representation, it is parties that the  electorate votes for, and parties which  must be accountable to the electorate.  A  party which abandons its manifesto in a  way not accepted by the electorate would  probably lose at the next election.  In  such a system an anti-defection clause is  not inappropriate to ensure that the will  of the electorate is honoured.  An  individual member remains free to follow  the dictates of personal conscience.  This  is not inconsistent with democracy.

\005. An ante-defection clause enables a  political party to prevent defections of its  elected members, thus ensuring that they  continue to support the party under  whose aegis they were elected.  It also  prevents parties in power from enticing  members of small parties to defect from  the party upon whose list they were  elected to join the governing party.  If this  were permitted it could enable the  governing party to obtain a special  majority which it might not otherwise be  able to muster and which is not a  reflection of the views of the electorate.   This objection cannot be sustained."

34.     It does not follow from this,  however, that a proportional  representation system without an ante- defection clause is inconsistent with  democracy.  It may be that there is a  closer link between voter and party in  proportional representation electoral

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systems than may be the case in  constituency-based electoral systems,  and that for this reason the argument  against defection may be stronger than  would be the case in constituency-based  elections.  But even in constituency- based elections, there is a close link  between party membership and election  to a legislature and a member who  defects to another party during the life of  a legislature is equally open to the  accusation that he or she has betrayed  the voters.

47.     The fact that a particular system  operates to the disadvantage of particular  parties does not mean that it is  unconstitutional.  For instance, the  introduction of a constituency-based  system of elections may operate to the  prejudice of smaller parties, yet it could  hardly be suggested that such a system is  inconsistent with democracy.  If defection  is permissible, the details of the  legislation must be left to Parliament,  subject always to the provisions not being  inconsistent with the Constitution.  The  mere fact that Parliament decides that a  threshold of 10% is necessary for  defections from a party, is not in our view  inconsistent with the Constitution.

Rule of law

55.     Our Constitution requires legislation  to be rationally related to a legitimate  government purpose. If not, it is  inconsistent with the rule of law and  invalid.

68.     In the pharmaceuticals  Manufacturers case it was pointed out  that rationality as a minimum  requirement for the exercise of public  power,

"does not mean that the courts can or  should substitute their opinions as to  what is appropriate, for the opinions of  those in whom the power has been  vested.  As long as the purpose sought to  be achieved by the exercise of public  power is within the authority of the  functionary, and as long as the  functionary’s decision, viewed objectively,  is rational, a court cannot interfere with  the decision simply because it disagrees  with it or considers that the power was  exercised inappropriately." This applies also and possibly with  greater force to the exercise by  Parliament of the powers vested in it by  the Constitution, including the power to  amend the Constitution.

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71.     The final issue with regard to the  founding values and rule of law relates to  the filing of vacant seats.  Members  elected on party lists are subject to party  discipline and are liable to be expelled  from their party for breaches of  discipline.  If that happens they cease to  be members of the legislature.

72.     Defecting members who form or join  another party become subject to that  party’s discipline and are equally liable to  expulsion for breaches of discipline.   Thus, if a defecting member is  subsequently expelled from his or her  new party, or if a member dies, provision  has to be made for how the vacant seats  are to be filled.

75.     In the result the objection to the  four Acts on the grounds that they are  inconsistent with the founding values  and the Bill of Rights must fail.  That  makes it unnecessary to consider  whether such provisions can be amended  by inference, or whether it is necessary if  that be the purpose of an amendment, to  draw attention to this in the section 74(5)  notices, and to state specifically that the  provisions of section 74(1) or 74(2), as the  case may be, are applicable to such  amendments."

       The distinguishing feature between ’constituency-based  representation’ and ’proportional representation’ in a  representative democracy is that in the case of the list system  proportional representation, members are elected on party  lines.  They are subject to party discipline.  They are liable to  be expelled for breach of discipline.  Therefore, to give effect to  the concept of proportional representation, Parliament can  suggest ’open ballot’.  In such a case, it cannot be said that  ’free and fair elections’ would stand defeated by ’open ballot’.   As stated above, in a constituency-based election it is the  people who vote whereas in proportional representation it is  the elector who votes.  This distinction is indicated also in the  Australian judgment in King v. James (supra).  In  constituency-based representation, ’secrecy’ is the basis  whereas in the case of proportional representation in a  representative democracy the basis can be ’open ballot’ and it  would not violate the concept of ’free and fair elections’ which  concept is one of the pillars of democracy. Further, every vote on a motion inside the House is by an  open ballot. The election of a Speaker, Deputy Speaker of the  House of the People and the Deputy Chairperson of the  Council of States is by a division which is a system of open  ballot. Reference may be made in this respect to Rule 7, 8,  364, 365, 367, 367A, 367AA and 367B of Rules of Procedure  and the Conduct of Business in the Lok Sabha and Rule 7,  252, 253 and 254 of Rules of Procedure and Conduct of  Business in the Council of States. In above view, the justification of the impugned  amendment on the reasoning that open voting eradicates the  evil of cross-voting by electors who have been elected to the

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Assembly of the particular State on the basis of party  nomination cannot be lightly brushed aside.  The submission on behalf of the Petitioners fails to take  into account the distinction between direct elections and  indirect elections.  This is not a case of direct election by an  individual voter in any particular election.  This is a case of  indirect election by members of the Legislative Assembly who  owe their membership to the Legislative Assembly having been  elected by reason of their being sponsored and promoted by  the political parties concerned. The contention that the right of expression of the voter at  an election for the Council of States is affected by open ballot  is not tenable, as an elected MLA would not face any  disqualification from the Membership of the House for voting  in a particular manner. He may at the most attract action from  the political party to which he belongs. Being a Member of the  political party on whose ticket he was elected as an MLA, in  the first place, he is generally expected to follow the directions  of the party, which is one of the basic political units in our  democracy.  Since the amendment has been brought in on the basis  of need to avoid cross voting and wipe out evils of corruption  as also to maintain the integrity of our democratic set-up, it  can also be justified by the State as a reasonable restriction  under Article 19(2) of the Constitution, on the assumption that  voting in such an election amounts to freedom of expression  under Article 19(1)(a) of the Constitution. Even if we were to cast aside the view taken in N.P.  Ponnuswami and proceed on the assumption that right to  vote is a constitutional right, expanding the view taken in the  case of People’s Union for Civil Liberties, there can be no  denial of the fact that the manner of voting in the election to  the Council of States can definitely be regulated by the  Statute. The Constitution does not provide that voting for an  election to the Council of States shall be by secret ballot. The  voting for an election to the Council of States till now was by  secret ballot due to a law made by Parliament. It cannot be  said that secret ballot in all forms of elections is a  Constitutional right. By the amendment, the right to vote is not taken away.  Each elected Member of the Legislative Assembly of the  concerned State is fully entitled to vote in the election to the  Council of States.  The only change that has come owing to the  impugned amendment is that he has to disclose the way he  has cast the vote to the representative of his Party. Parliament  would justify it as merely a regulatory method to stem  corruption and to ensure free and fair elections and more  importantly to maintain purity of elections. This Court has  held that secrecy of ballot and purity of elections should  normally co-exist. But in the case of the Council of States, the  Parliament in its wisdom has deemed it proper that secrecy of  ballot should be done away with in such an indirect election,  to ensure purity of election. The procedure by which an election has to be held should  further the object of a free and fair election. 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. It is the  duty of the Parliament to take cognizance of such  misbehaviour and misconduct and legislate remedial  measures for the same. Breach of Discipline of political parties  for collateral and corrupt considerations removes the faith of  the people in a multi party democracy. The Parliament,  therefore, necessarily legislated to provide for an open ballot. A

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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. It is well settled that  a challenge to Legislation cannot be decided on the basis of  there being another view which may be more reasonable or  acceptable.  A matter within the legislative competence of the  legislature has to be left to the discretion and wisdom of the  latter so long as it does not infringe any Constitutional  provision or violate the Fundamental rights.  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. We would like to recall the following views of this Court  in Indira Nehru Gandhi v. Raj Narain: - "672. The contention that "democracy" is  an essential feature of the Constitution is  unassailable. \005\005\005 If the democratic  form of government is the cornerstone of  our Constitution, the basic feature is the  broad form of democracy that was known  to Our Nation when the Constitution was  enacted, with such adjustments and  modifications as exigencies may demand  but not so as to leave the mere husk of a  popular rule. Democracy is not a  dogmatic doctrine and no one can  suggest that a rule is authoritarian  because some rights and safeguards  available to the people at the inception of  its Constitution have been abridged or  abrogated or because, as the result of a  constitutional amendment, the form of  government does not strictly comport  with some classical definition of the  concept. The needs of the nation may call  for severe abnegation, though never the  needs of the rulers and evolutionary  changes in the fundamental law of the  country do not necessarily destroy the  basic structure of its government. What  does the law live for, if it is dead to living  needs? \005\005..."  (emphasis supplied)

Thus, we do 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. It is provided in Article 80 (2) that allocation of seats in  the Council of States to be filled by the representatives of  States and the Union Territories shall be in accordance with  the provisions in that behalf contained in the Fourth  Schedule. In Article 80(4), it is provided that the  representatives of each State shall be elected by the elected

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Members of the Legislative Assemblies of the States in  accordance with the system of proportional representation by  means of a single transferable vote. Apart from this, the  Constitution does not put any restriction on the legislative  powers of the Parliament in this regard. The amendments in  Sections 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 Articles 84 and 327 and Entry 72 of the Union List of the  Seventh Schedule to the Constitution.  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. All the Writ Petitions questioning the Constitutional  validity of the amendments brought about in the  Representation of People the Act, 1951 through the  Representation of the People (Amendment) Act, 2003 (Act  No.40 of 2003), being devoid of merits are hereby dismissed.  Interim orders stand vacated. All parties are left to bear their  own costs.