Author Name:   Priyanka Chakraborty

The execution of federalism cannot be the same in every circumstance, variation happens according to the homogeneity or heterogeneity of it constituents. In the Indian context, it is a fact that the cultural diversity is immense and the circumstances differ from point to point geographically, culturally and historically.

An Analysis on The Case of Kuldip Nayar V. Union of India AIR 2006 SC 3127

A BRIEF HISTORY OF THE CASE:
1. By the Amendment of Representative of People Act 2003, the requirement of “domicile” in the State Concerned for getting elected to the Council of States was deleted.

2. There was also amendments in Sections 59, 94 and 128 of the Representative of People Act, 1951 by which Open Ballet System was introduced.

3. By writ petition under Article 32 of the Constitution of India, petitioner challenged the 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.

4. There was a further challenge to the amendments in Sections 59, 94 and 128 of the RP Act, 1951 by which Open Ballet System is introduced.

5. The requirement of “domicile” in the State Concerned for getting elected to the Council of States which was deleted in section 3 of RP act, which, according to the petitioner violates the principle of Federalism, a “basic structure” of the Constitution.

6. Also the Open Ballot System violates the principle of “secrecy” which, according to the petitioner, is the essence of free and fair elections as also the voter’s freedom of expression which is the basic feature of the Constitution and the subject matter of the fundamental right under Article 19(1)(a) of the Constitution.

Main Contention of The Case:
Deletion of the requirement of “domicile” in the State Concerned for getting elected to the Council of States violates the principle of Federalism, a basic structure of the Indian Constitution and the Open Ballet System violates the principle of “secrecy”. This principle of secrecy 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.

Kuldip Nayar V. Union of India

Bench:
C.J. Y.K. Sabharwal
J. K.G. Balakrishnan
J. S.H. Kapadia
J. C.K. Thakker
J. P.K. Balasubramanyan

Issues Raised In The Case:
1. Whether by the amendment of Representative of people Act 2003, in which the requirement of “domicile” in the State Concerned for getting elected to the Council of States is deleted violates the principle of Federalism, a basic structure of the Constitution?

2. Whether the Open Ballet System violates the principle of “secrecy" which is the subject matter of the fundamental right under Article 19(1)(a) of the Constitution?

Major Sections Cited In The Case:
1. Representation of People Act, 1950-Section 13D,14,15,16,17,18,19,20,21,22,23,24,30;
2. Representation of People (Amendment) Act, 1951-Section 2, 3, 4, 5, 6, 16, 29A, 29B, 29C, 59, 62, 94, 95, 100, 125, 128, 171;
3. Constitution of India- Article 5, 6, 8, 9, 13, 14, 16, 19, 31B, 32, 51, 55, 66, 68A, 79, 80(4), 81, 82, 83, 84, 90, 91, 92, 93, 101, 105, 132, 143, 152, 163, 164, 168, 170, 173, 190, 194(1), 194(2), 213, 226, 227, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 258(1), 290, 302, 312, 324, 325, 326, 327, 328, 329, 330, 355, 356, 356(1), 357, 368, 368(2), 379;

Acts Used In The Case:
1. Representation of the People Act, 1951
2. Representation of People (Amendment) Act, 1951
3. Army Act, 1950
4. Government of India Act, 1915
5. Administrative Tribunal Act, 1985
6. Mines and Minerals Act, 1957

Domicile Requirement And Open Ballot System
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.

That the nomenclature “Council of States” indicates the federal character of the House and a representative who is not ordinarily resident and who does not belong to the State concerned cannot effectively represent the State.

The impugned amendment and introduction of open ballot system violates the right of secrecy by resorting to open ballot system that is nothing but a political move by clique in political parties for their own achievement. It is contended that the impugned amendments violate the Fundamental Right under Article 19(1)(a) of the Constitution as well as the provisions in the Representation of the People Act, 1951, Universal Declaration of Human Rights and International Covenant on Civil and Political Rights

Basic Structure Doctrine
The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament.

The doctrine forms the basis of a limited power of the Supreme Court to review and strike down constitutional amendments enacted by the Parliament which conflict with or seek to alter this “basic structure” of the Constitution. The basic structure doctrine applies only to constitutional amendments.

The petitioner challenged that the amendments violate the Basic Structure of the constitution.

But it was submitted on behalf of Union of India that basic structure doctrine is inapplicable to Statutes.

The Court also held that it is no part of federal principle that representatives of state must belong to that state. Hence, if Indian Parliament in its wisdom had chosen not to require residential qualification, it would definitely not violate basic feature of federalism. Court very technically held that, residence is not a constitutional requirement of Article 80(4), it is a matter of qualification coming under Article 84. Parliament is competent to prescribe qualification from time to time depending upon fact of the situation. Question of violation of basic structure did not arise. Court also held that the representative character is to be read only after the person is being elected to the council of stated, and not before that.

Further, an ordinary legislation cannot be challenged on ground of violation of basic structure of Constitution. Right to be elected is pure and simple a statutory right that can be created and taken away by parliament and must always be subject to statutory limitation.

Regarding the second question, the court held that in case of list system proportional representation, members are elected on party lines. To give effect to concept of proportional representation, Parliament can suggest “open ballot”. In such a case, it could not be said that “free and fair elections” would stand defeated by “open ballot”. Further, prerogative remained with the voter to choose as to whether or not to show his vote to authorized agent of his party and also nowhere in law it is mentioned that “secret ballot” is the only system.

Respondent’s View Point
Residence was never the constitutional requirement. It was never treated as an essential ingredient of the structure of the Council of States. The legislative history of constitutional enactments like the GI Act shows that residence or domicile is not the essential ingredients of the structure and the composition of the Upper House.

List of Reports Referred In The Case:
I. Australian Constitutional Law (2nd Edition) by Fajgenbaum and Hanks;
II. Craies on Statute Law (7th Edn., 1971, p. 158);
III. Crawford on Statutory Construction (1940 ed.) in paragraph 219 (at pp. 393-395);
IV. Crawford on Statutory Construction, 1940 Edn., paragraph 157, pp. 240-42;
V. Dictionary of Modern Legal Usage, 2nd Edn., by A. Garner Bryan;
VI. Griffith and Ryle on Parliament Functions, Practice and Procedure (1989 edn., p. 119); Halsburys Laws (3rd Edn.) (1961)Vol. 36, paragraph 606, p. 401;
VII. Irish Constitution (Constitution of India by Basu, 6th Edn.Vol.F);
VIII. Laski: A Grammar of Politics, Fifth Edn., pp. 313-314);
IX. Maxwell “On the Interpretation of Statutes”, 10th edn., pp. 50-51;
X. Maxwell on Interpretation of Statutes, 12th Edn., p. 28;
XI. Maxwell on the Interpretation of Statutes (12th Edn., 1969, pp 74-75);
XII. New Oxford Illustrated Dictionary;
XIII. Ramanatha Aiyars Law Lexicon (edited by Justice Y.V. Chandrachud)

Final Conclusion
· Rejecting all the grounds a unanimous 5 judge bench found no infraction of any constitutional provision or principle.

· Admitting that India is a federal state of its kind, the court held that ‘It is no part of federal principle that the representatives of state must belong to that state’. The word ‘representative of each state’ only refers to the members and do not import any further concept or requirement of residence in the state.

· Similarly the court found no violation of any constitutional provision or principle in the amended Section 59 of RP Act insofar as it required election to Rajya Sabha by open ballot.

· Secrecy of ballot, the court held, was not essential feature of democracy which is a basic feature of our constitution.

Hence, Petition Was Disposed Off.

Our Comment:
The execution of federalism cannot be the same in every circumstance, variation happens according to the homogeneity or heterogeneity of it constituents. In the Indian context, it is a fact that the cultural diversity is immense and the circumstances differ from point to point geographically, culturally and historically.

Thus, in such a heterogeneous society, the “construction of federalism often reflects differing levels of regional identity” and specific regional groups might be considered more significant and few might be left behind. The prime objective of a representative is to sensitize the issues of the region, help gain resources and shape appropriate policies and in such a society, it becomes imperative that the representative must be of the region himself as the underlying heterogeneity calls for a representative who has the inherent understanding of the situation rather than an outsider who may not be able to understand the regional variations.

Also the idea of a state is not merely territorial but it is also inclusive of its inhabitants. With reference to Article 1 of the constitution, India shall be a Union of States and through this understanding, it must be noted that the term “Representatives of each State” (Article 80(4)) refers only to people residing in the state and thus, only they can have a capability to represent the State in the Council of States. Owing to the amendment in question, there are few aspects which must be looked into so as to realize the great threat that it causes to the federal structure:-

I. Individuals who are not able to win at the Lok Sabha elections or ones who may not be able to win the Rajya Sabha seat from their own states have been taking advantage of this amendment to reach the Rajya Sabha irrespective of the ideals of federal representation.

II. Looking at the possibilities, it can happen that in a certain situation all the representatives of the different states would belong to one particular state and the ideals of diversity and State representation in the Council of States shall be infringed.

Present Day Scenario Under The Light of The Case:
Owing to the above discussed amendment, the individuals have everything to lose as they can only watch as the principles of rightful representation shall be tarnished to accommodate a rather retrograde amendment due to which the States may not be able to voice their issues effectively. The change is catabolic in nature leading to the ideals of federalism, with reference to the Rajya Sabha, now being just a muddled expression of what was originally established. So, the amendment to the domicile requirements in Rajya Sabha is indeed a great threat to the Indian Federalist principles.

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