TaxTMI 
TaxTMI 
2006 (8) TMI 583
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....4 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. 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. 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. No witness or other persons shall be required to state for whom he has voted at an election. 128. Mainten....
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....e 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 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 sub....
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.... 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 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 ....
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....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. (1) A person shal....
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.... 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 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- ....
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....s 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 resi....
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....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....
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....ons 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). How....
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....n 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 ....
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.... 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 Indi....
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....s 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 ....
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....y 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 a....
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....rt considered the nature of federalism under the Constitution of India. Justice A.M. Ahmadi, in Paragraph 23 of his Judgment observed as under: " 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 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 existenc....
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.... 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. must 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. . 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 : (....
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....ution has a federal structure. Several provisions of the Constitution unmistakably show that the Founding Fathers intended to create a strong centre .." (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 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 ....
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....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 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 o....
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....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 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 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....
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....epresenting 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 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 an....
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....ng 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 allowing too much power to the states. However, the role of the Canadian senate ....
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....e, 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 Vi....
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....bject 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 ....
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....n 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 t....
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.... 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 violation of the express constitutional provisions. The learned counsel next referred to L. Chandra Ku....
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.... 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 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 theo....
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....tution 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 b....
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....mented, a constitutional provision so long as the addition or supplementation is not inconsistent with any provision of the Constitution ." 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 .." 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 P....
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....ctions; 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 with the second and Article 329 with the third requisite. .. 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 "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....
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.... 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 ....
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....stent 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 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 (M....
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....o 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 b....
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....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 effectu....
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....f 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 terri....
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....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 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, ha....
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....on 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 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 P....
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.... 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 "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 represen....
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....f 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 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....
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....by insisting upon, as a qualification, some link or nexus between the person elected to the Council 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....
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....ch 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 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 C....
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....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 Sch....
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.... 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 t....
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....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....
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....cember 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 ap....
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....l 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 what is found laid down. The provisions whose meaning is under conside....
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....mes 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 ." 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: - " .. some articles of the Constitution and some sections of the Act refer to seats in connection with election to the House of the People.....
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....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 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, th....
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....al 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 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 .". 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 f....
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....ive 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 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 so....
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.... 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 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 ca....
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....ach 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 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 f....
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.... 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 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 ....
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....ion '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 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....
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....ected 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. 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 fa....
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.... 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 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 de....
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....hat 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 ....
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....e 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 th....
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....n 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 ....
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....n 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 i....
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....ith 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 Entr....
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.... 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 spe....
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.... 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 qualificat....
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....ies; (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 provision....
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....1, 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 bal....
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.... 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 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 nee....
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....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 amena....
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....e 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 inde....
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.... 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: - " (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 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 nat....
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....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, directio....
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.... 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 ." (emphasis supplied) In Paragraph 46 of the judgment, the legal and constitutional position emerging from the discussion was summed up thus: - " .. 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 recogni....
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....he 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) (supra), need to be borne in mind: - " Such 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. ..If any statutory provision abridges fundamental right, that statutory provision would be void. .. 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. ." In same case, P.V. Reddi J., in his separate judgment observed as under in Para....
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.... 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 fu....
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....ocess 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 Privileg....
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.... 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 they apply in relation to members of Parliament." "194. Powers, privileges, etc., of the Houses of Legislatures and of the members and committees thereof. (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 committ....
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.... 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 ....
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....fied 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 t....
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....lot 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 and this is an equally, if not more important aspect of our Constitutional law we have adopted a pluralist democracy. It ....
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.... 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, 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....
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....y 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) whether really all directions or whips from the party entail the statutory consequences or whether having regard to the ext....
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....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, 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 fo....
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....onvention, in which the principles of the 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: - " Others 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....
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....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 ....
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....nder 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 provisi....
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....nacted 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 ....
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....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 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 ex....
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....therefore, owe their power to the people, directly or indirectly." 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 count....
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....e 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 Legislat....
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....at 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 referr....
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....servations 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 elec....
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....ng 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 with in the manner....
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....gent 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 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 h....
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.... 30 of the Australian Constitution refers to qualifications of electors. Section 24 of the Australian Constitution deals with choosing of members in which 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 statisti....
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....lth, 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 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 re....
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.... 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....
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....ht 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, provinci....
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.... 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 provisio....
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.... 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 determine the nature of the consequence that is impermissible. The consequence that will be imper....
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....aint, it becomes 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....
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....ot 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....
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....ross 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, 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 De....
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....ffrage, 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 i....
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.... 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 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....
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....ention 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 ....
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.... 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....
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....e 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?..." (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 th....