TaxTMI 
TaxTMI 
2006 (8) TMI 583
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....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. Maintenance of secrecy of voting. (1) Every offi....
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....l 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 subject matter of "Elections". It includes, presently, Articles 324 to....
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....ubject 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 House of the People. Section 3 of the RP Act, 1951, in its original form is....
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.... 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 shall be disqualified for registration in an electoral roll if he is not a citizen of India; ....
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....lification 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- section (4) shall if she be ordinarily residing with such person be deemed to be ordinarily resident on in the constituency speci....
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....that its members have to represent the people of different States to enable them to legislate after understanding their problems; that the nomenclature "Council of States" indicates the federal character of the House and a representative who is not ordinarily resident and who does not belong to the State concerned cannot effectively represent the State. Learned counsel further submits that India has adopted parliamentary system of democracy in which the Union Legislature is a bi-cameral legislature, that such legislature represents the will of the people of the State whose cause has to be represented by the members. It is urged that the impugned amendments removes the distinction in the intent and purpose of Lok Sabha and Rajya Sabha and that the mere fact that there exists numerous instances of infringement of the law concerning the requirements of residence cannot constitute a valid object or rational reason for deleting the requirement of residence. Reliance is also placed in this connection on Rajya Sabha Rules to show the importance of residence as qualification of a representative of the State. It is further contended that the requirement of domicile makes the upper House an ....
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....slative developments. The key question is whether residence was ever treated as a constitutional requirement under Article 80(4). In re: Special Reference No. 1 of 2002 [(2002) 8 SCC 237], it was observed that: "One of the known methods to discern the intention behind enacting a provision of the Constitution and also to interpret the same is to look into the historical legislative developments, Constituent Assembly Debates, or any enactment preceding the enactment of the Constitutional provisions." (ii) Legislative History The Constitution has established a federal system of Government with bi-cameral legislature at the Centre which is not something which was grafted in the Constitution for the first time. Its history goes back to Government of India Act, 1915 as amended in 1919. Even under the Government of India Act, 1919, the qualification of residence in relation to a particular constituency was considered to be unnecessary. This position is indicated by Rule XI of the then Electoral Rules. This position is also indicated by the provisions of the Government of India Act, 1935 under which the Legislature at the Centre was bi-cameral. The Lower Chamber was called 'House of....
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....t Assembly that the Federal Parliament shall consist of two chambers. In the first draft Constitution, Fourth Schedule related to the composition of the Federal Parliament. Paragraph 1 of Part I of the Fourth Schedule dealt with the general qualifications for the members which included citizenship and minimum age of not less than 35 years in the case of a seat in the Council of States. The said paragraph further stated that apart from citizenship and age qualifications, it would be open to the Parliament to describe any other qualification as may be appropriate. Paragraph 6 of Part I of the Fourth Schedule appended to the first draft Constitution provided for the qualification of residence in a State for a candidate to be chosen to the Council of States. Clause 60 of the first draft Constitution stated that all matters relating to or connected with elections to either House of the Federal Parliament shall be regulated by the Fourth Schedule, unless otherwise provided by the Act of the Federal Parliament. (Emphasis supplied). However, the Fourth Schedule was omitted by the Drafting Committee. This was on 11th February, 1948. Therefore, with this deletion, the requirement of residen....
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....cluded in the Draft. If any standard of qualifications is to be laid down for candidates for membership it must be so precise that an election tribunal will be able to say, in a given case, whether the candidate satisfied it or not. To formulate precise and adequate standards of this kind will require time. Further, if any such qualifications are laid down in the Constitution itself, it would be difficult to alter them if circumstances so require. The best course would, therefore, be to insert an enabling provision in the Constitution and leave it to the appropriate legislature to define the necessary standards later. Whatever qualifications may be prescribed, one of them would certainly have to be the citizenship of India." To sum up, the legislative history indicates that residence is not a constitutional requirement of clause (4) of Article 80. Residence is a matter of qualification. Therefore, it comes under Article 84 which enables the Parliament to prescribe qualifications from time to time depending upon the fact situation. Unlike USA, residence is not a constitutional requirement. In the context of Indian Constitution, residence/domicile is an incident of federalism which ....
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....advantage is, therefore, given to States with small population over the States with bigger population. This is called "weighted proportional representation". The system of proportional representation helps in giving due representation to minority groups. The representatives of a State in Rajya Sabha are elected by the elected members of the State Legislative Assembly in accordance with the system of proportional representation by means of a single transferable vote [Article 80(1)(b) and Article 80(4)]. Rajya Sabha is a continuing body. It has nominated members. They are nominated by the President on the advice of Council of Ministers. There is no difference in status between elected and nominated members of Rajya Sabha except that the elected members can participate in the election of the President whereas the nominated members cannot do so. One-third of its members retire every two years and their seats are filled by fresh elections and nominations. Rajya Sabha's power under Article 249 of the Constitution The Indian union has been described as the 'holding together' of different areas by the constitution framers, unlike the 'coming together' of constituent uni....
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.... up a matter which is perhaps partly theoretical but one which has a validity so far as the average man in this country is concerned. Are we framing a unitary Constitution? Is this Constitution centralizing power in Delhi? Is there any way provided by means of which the position of people in various areas could be safeguarded, their voices heard in regard to matters of their local administration? I think it is a very big charge to make that this Constitution is not a federal Constitution, and that it is a unitary one. We should not forget that this question that the Indian Constitution should be a federal one has been settled by our Leader who is no more with us, in the Round Table Conference in London eighteen years back." "I would ask my honourable friend to apply a very simple test so far as this Constitution is concerned to find out whether it is federal or not. The simple question I have got from the German school of political philosophy is that the first criterion is that the State must exercise compulsive power in the enforcement of a given political order, the second is that these powers must be regularly exercised over all the inhabitants of a given territory; and the thi....
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.... provisions which establish the essence of federalism i.e. having States and a Centre, with a division of functions between them with sanction of the Constitution include, among others, Lists II and III of Seventh Schedule that give plenary powers to the State Legislatures; the authority to Parliament to legislate in a field covered by the State under Article 252 only with the consent of two or more States, with provision for adoption of such legislation by any other State; competence of Parliament to legislate in matters pertaining to the State List, only for a limited period, under Article 249 "in the national interest" and under Article 250 during "emergency"; vesting the President with the power under Article 258(1) to entrust a State Government, with consent of the Governor, functions in relation to matters to which executive power of the Union extends, notwithstanding anything contained in the Constitution; decentralization of power by formation of independent municipalities and Panchayats through 73rd and 74th Amendment; etc. In re: Under Article 143, Constitution of India, (Special Reference No. 1 of 1964) [AIR 1965 SC 745 (Paragraph 39 at 762)], this Court ruled thus: "In ....
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....bsence 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 existence which cannot be impaired; indestructible States having constituted an indestructible Union. In India, on the contrary, Parliament can by law form a new State, alter the size of an exi....
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....hus: "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 : (AIR 1962 SC 1406). It is equally necessary to emphasise that Courts should be careful not to upset the delicately crafted constitutional scheme by a process of interpretation. (emphasis supplied....
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....ant 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 of States supported by not less than two-third majority (Article 312); there is only one citizenship namely the citizenship of India; and, perhaps most important, the power of the Parliament in relation to the formati....
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....a 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 of the Constitution. He also submitted that the central idea to be kept in mind for appreciating the argument is that it is government "of the people" and "by the people". Thus, it is the argument of the petitioners that "Bir....
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....a 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 British institutions of parliamentary governance were also embodied in the British North America Act, 1867 by which the Dominion of Canada came into existence and The Constitution of India, 1950. In Canada, the Parliament consists of ....
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....ralism 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 and ensuring of more parity between states of different sizes resulted in a compromise in the drafting of the constitution. While the Lower House of Congress, i.e. the House of representatives was to be constituted by members elected from ....
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....ate 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 has been widely criticized owning to it's method of composition. The genesis of the Indian Rajya Sabha on the other hand benefited from the constitutional history of several nations which allowed the Constituent assembly to examine ....
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.... single transferable vote [Article 80(4)]. The manner of election for representatives from Union territories has been left to prescription by parliament [Article 80(5)]. The allocation of seats for the various states and union territories of the Indian Union is enumerated in the Fourth schedule to the constitution, which is read with Articles 4(1) and 80(2). This allocation has obviously varied with the admission and re- organisation of States. Under Article 83(1), the Rajya Sabha is a permanent body with members being elected for 6 year terms and 1/3rd of the members retiring every 2 years. These 'staggered terms' also lead to a consequence where the membership of the Rajya Sabha may not reflect the political equations present in the Lok Sabha at the same time. The Rajya Sabha cannot be dissolved and the qualifications for its membership are citizenship of India and an age requisite of 30 years [Article 84]. As per Article 89, the Vice-president of India is the Ex- officio Chairman of the Rajya Sabha and the House is bound to elect a Deputy Chairman. Articles 90, 91, 92 and 93 further elaborate upon the powers of these functionaries. The American Senate on the other hand ....
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....ebec, appointees must be residents of the electoral district for which they are appointed. Once appointed, senators hold office until the age of 75 unless they miss two consecutive sessions of Parliament. Until 1965, they used to hold office for life. Even though the Canadian senate is seen as entirely dependent on the Executive owing to party affiliations in appointments, the provision for holding terms till the age of 75 does theoretically allow for the possibility of the Opposition to command a majority in the Senate and thereby disagree with the Lower House or the executive, since the members of the Lower House are elected for 5 year terms. Now that a general idea has been gained on the methods of composition of the Second Chambers in India, U.S.A. and Canada, one can analyse the varying degree of representation accorded to constituent states in the three systems before proceeding to compare the policy scope as well as the practical and extra-legislative powers accorded to these chambers. The idea of equal representation for states in the Senate was built into the American Constitution. The 17th amendment can hence be considered a reform in so far as it threw the election of se....
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....he working of federalism in India i.e. the creation of new states, some of which had violent separatist tendencies, would have been difficult under the U.S. principle of representation for each state equally. The Irish Constitution like the Indian Constitution does not have strict federalism. Residence is not insisted upon under the Irish Constitution (See Constitution of India by Basu, 6th Edn. Vol.F). Similarly, in the case of Japanese Constitution, qualifications are prescribed by the statute and not by the Constitution. The various constitutions of other countries show that residence, in the matter of qualifications, becomes a constitutional requirement only if it is so expressly stated in the Constitution. Residence is not the essence of the structure of the Upper House. The Upper House will not collapse if residence as an element is removed. Therefore, it is not a prerequisite of federalism. It can be safely said that as long as the State has a right to be represented in the Council of States by its chosen representatives, who are citizens of the country, it cannot be said that federalism is affected. It cannot be said that residential requirement for membership to the Upper....
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....sions 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 Kumar v. Union of India & Ors. [1997 (3) SCC 261 (7 Judges) (Paragraph 17 page 277 and Paragraph 99 at p.311)], in which case not only was the Constitutional amendment depriving High Court of its jurisdiction under Article 226 and 227 (from decisions of Administr....
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....ation 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 theory of basic features or basic structure or basic framework. Second, the majority view in Kesavananda Bharati's case (supra) is that the Twenty-ninth Amendment which put the two statutes in the Ninth Schedule and Article 31-B is not open to challenge on the ground of ....
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.... must be tested on those norms and, if found wanting, must be struck down. The norms of election set out by Parliament or State Legislatures tested in the light of the provisions of the Constitution or necessary implications therefrom constitute the law of the land. That law cannot be subject to any other test, like the test of free and fair election in an ideal democracy." (emphasis supplied) In Paragraph 356, he proceeded to rule as under: - "There is no support from the majority in Bharati's case (supra) for the proposition advanced by Counsel that an ordinary law, if it damages or destroys basic structure should be held bad or for the proposition that a constitutional amendment putting an Act in the Ninth Schedule would make the provisions of the Act vulnerable for the reason that they damage or destroy a basic structure constituted not by the fundamental rights taken away or abridged but some other basic structure. And, in principle, I see no reason for accepting the correctness of the proposition." (emphasis supplied) In same case, Chandrachud, J. in Paragraph 691 of his separate judgment ruled as under: - "Ordinary laws have to answer two tests for their validity: (1)....
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....not 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 Public Services Tribunal Bar Association v. State of U.P. & Anr. [2003 (4) SCC 104] and State of Andhra Pradesh and Ors. V. McDowell & Company & Ors. [1996(3) SCC 709]. The basic structure theory imposes limitation on the power of the Parliament to amend the Constitution. An amendment to the Const....
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....lly 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 no bearing on this method of approach to the question posed in this appeal, which appears to me to be the only correct method." (Emphasis supplied) In Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi & Ors. [1978 (1) SCC 405 (427)], a similar view was taken in the following words:....
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...., there was a separate arrangement for Part C States, some of which were put in different groups to provide for unified constituencies for returning a common representative (for the State or the Group) to the Council of States, though the qualification in the nature of compulsory status of elector "in that State" would apply there also, with some modification here and there, in that, generally the person was required to be "an elector for a Parliamentary constituency in that State or in any of the States in that group, as the case may be". In the case of the States of Ajmer and Coorg or of the States of Manipur and Tripura, which formed two separate groups for the purpose in the Council of States, the arrangement was to rotate the seats and so it was essential for the candidate to be "an elector for any Parliamentary constituency in the State in which the election of such representative is to be held". Mr. P.P. Rao, Senior Advocate appearing for the State of Tamil Nadu had a similar take on the subject and pressed in aid the principle of 'contemporanea expositio'. His submission was that this principle is relevant for interpreting the words "the representative of each State....
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....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 (Maxwell 12th ed. P. 268). In Crawford on Statutory Construction (1940 ed.) in paragraph 219 (at pp. 393-395) it has been stated that administrative construction (i.e. contemporaneous construction placed by administrative or executive officers charged with executing a statute) generally should be clearly wrong before it is overturned;....
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.... by Parliament within the meaning of Article 302 of the Constitution." In Commissioner of Income Tax, Jullundur v. Ajanta Electricals, Punjab [(1995) 4 SCC 182], it was ruled thus: "Though the rule cannot affect, control or derogate from the section of the Act, so long as it does not have that effect, it has to be regarded as having the same force as the section of the Act." The submission, thus, is that the principle of contemporanea expositio is relevant for interpreting the words "the representatives of each State" in Article 80(4) of the Constitution with reference to contemporary legislation made by the Constituent Assembly itself acting as provisional Parliament just as subordinate legislation is used in order to construe the parent Act. But then, the fallacy of the above approach to the subject lies in the fact that legislation by the provisional Parliament did not produce a constitutional rule. It does not have the sanctity or normative value of Constitutional Law. When the Act of 1951 was debated, no one argued that the residence qualification had already been decided upon by the Constituent Assembly and, therefore, no debate should take place. The difference between th....
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.... the argument of the petitioner were to be correct, all the amendments made so far in these Acts would have required Constitutional amendments. While there need be no quarrel with the proposition that the Constitution and the RP Acts form an integrated scheme of elections, it does not follow that on this account the domiciliary requirement in Section 3 RP Act 1951, as originally enacted, is part of the said scheme so as to be treated a constitutional requirement. Restrictions under Article 368 It has been submitted that Section 3 of RP Act, 1951, as it stood before amendment, read with Article 80(4), had ensured the "representation of States" in Parliament. Referring to proviso (d) in Article 368 (2), it has been argued that even a Constitutional amendment making any change in representation of States in Parliament cannot be effectuated without the ratification by one half of the States Legislatures. On this premise, it has been submitted that it should follow, as a necessary corollary, that the change made in Section 3, RP Act, 1951 is one that no longer ensures, by Parliamentary law, the representation of States in Parliament, or in any case one that makes a change in the existi....
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....on" of States in Parliament. The first provision is of limited import while the latter has a wider connotation. Article 1, having declared in its sub-Article (1) that India "shall be a Union of States", provides through sub-Article (2) as under:- "The States and the territories thereof shall be as specified in the First Schedule." The First Schedule mentions the names of the States and Union Territories and specifies their respective territories. Article 2 empowers the Parliament to admit, by law into the Union of India, or to establish new States. Article 3 empowers Parliament, by law, inter alia, to "form a new State", "increase the area of any State", "diminish the area of any State" or "alter the name of any State". This power has been used many a time by Parliament to reorganize the States and their territories. Article 4 is of great relevance for purposes at hand. It reads as under: - "Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters.- (1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth ....
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....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, having regard to their respective domicile. The argument based on the provision of the Acts relating to Reorganization of States does not carry the matter further at all. Obviously, at the time of creation of new States, the existing members of the Council of States had to be allocated to the old or new States. This was done in conformity with the then existing principles underlying the r....
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....tution. 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 People for a constituency in one particular State even though one is an elector registered as such in a Parliamentary constituency in another State. He pointed out that the composition of the House of the People, as per Article 81(1)(a), is different, since it consists of "members chosen by direct election from territorial constituencies in the States", such members not representing, nor expected to ....
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....arliamentary 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 represent in the Council of States, which is now missing. These arguments do not appeal to us. Article 79 leaves no doubt about the fact that House of the People and the Council of States are both "Houses" of Parliament. The names given to the two Houses are proper nouns and do not spell out any right or obligation, much less limitations on Parliament's legislative power available to it under Article 84 (c).....
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....s 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 of the learned Counsel for the petitioners that the words "representatives of the States" in Article 80 (1)(b) and (2) and the words "representatives of each State in the Council of States" in Article 80(4) need to be interpreted in such a manner that it tends to strengthen the basic structure of the Constitution, having due regard to its federal character and the foundational feature of democracy, namely the sys....
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....o was to be the "representative of each State" in Article 80 (4). It has been argued that if by electing a person as a Member of the Council of States by a particular State Assembly itself made that person a 'representative' of that State then it was unnecessary to enact Section 3 of the RP Act. Therefore, according to the argument, it has to be concluded that the Provisional Parliament (which had also drafted and enacted the Constitution), when enacting Section 3 of the RP Act, had thought it necessary to define the "representative of the State", with reference to his residence "in that State". The above mentioned argument to the extent founded on the principle of basic structure need not detain us any further as it is the same argument as dealt with in the context of federal structure, albeit with a slightly different shade. Moreover, the link factor is retained by the impugned amendments inasmuch as the candidate for the election to the Council of States is now required to be an elector for Parliamentary constituency. Therefore, the linking factor is made broad based. Article 80 shows that the Council of States consists of 12 Members nominated by the President and 238 ....
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....e led to an impression that Rajya Sabha Members of Parliament do not represent the State, as each State would have different ratio in the number of members representing it. It appears that in order to dispel such an impression it has been provided that, notwithstanding the fact that they are elected as per allocation made in the Forth Schedule, on the basis of population, members of the Council of States are indeed representatives of the State. The reliance on the word "each" is misplaced. It fails to notice as to why the word "each" was inserted in the Article in the first place. Sub-Articles (4) & (5) of Article 80, in its original form, read as under: - "(4) The representatives of each State specified in Part A or Part B of the First Schedule in the Council of State shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. (5) The representatives of the State specified in Part C of the First Schedule in the Council of States shall be chosen in such manner as Parliament may by law prescribe." By the Constitution (Seventh Amendment) Act 1956, which broug....
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....to the Union territories by Parliament." By the Constitution (Seventh Amendment) Act 1951, the words "specified in Part A or Part B of the First Schedule" as used in Article 80 (4) were deleted. By the same amendment, the words "States specified in Part C of the First Schedule" in Article 80(5), were substituted by the words "Union Territories." The States were being reorganized. The categorization of the States as Part A, Part B or Part C States was being abolished. Some of the States earlier classified as Part C States were now being named as "Union Territories". Since the allocation of seats in the Council of States as given in the Fourth Schedule must necessarily correspond to the States (and Union Territories) mentioned in the First Schedule, in view of the requirement of Article 1 (2) and Article 4, the provisions contained in Article 80 had to undergo consequential amendments. Noticeably, the word "each" had appeared only in Article 80(4) in the context of the representatives of the States. The expression "representatives of the States" appears first in Article 80(1) and then in Article 80(2) so as to specify the number (to be elected) and the allocation of seats (to be s....
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....n mind the concept of democracy, i.e. system of self- governance. Reliance has been placed in this context once again on Sub-Committee on Judicial Accountability v. UOI & Ors. (supra); P.V. Narasimha Rao v. State (CBI, SPF) (supra); and S.R. Bommai v. UOI (supra). The first two cases have already been taken note of. Regarding S.R. Bommai, the following observations, at page 118, have been referred to : - "Thus the federal principle, social pluralism and pluralist democracy which form the basic structure of our Constitution demand that the judicial review of the Proclamation issued under Article 356(1) is not only an imperative necessity but is a stringent duty and the exercise of power under the said provision is confined strictly for the purpose and to the circumstances mentioned therein and for none else. It also requires that the material on the basis of which the power is exercised is scrutinised circumspectly." The argument is that the word "representative" in the context of parliamentary democracy requires both capacity to represent and authority to represent. Only a member of a class can represent the class in a system of self-governance. It follows that unless a person be....
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....e he is elected by the State Assembly. In order to represent the State (as distinct from representing the State Assembly) in the Council of States, he must first be the representative of the State under Article 80(4) before the legislative body elects him. He buttressed this plea by seeking to highlight that in the said sub-Article, the expression "representatives of each State in the Council of States" precedes the prescription about mode of election (the system of proportional representation by means of the single transferable vote). The Counsel further argued that the expression "representatives of the States", as used in Article 80 (1) (b) and Article 80 (2) and the expression "representatives of each State", as employed in Article 80 (4) have been left to be defined by Parliament "by law" made under Article 84 (c) which requires Parliament to prescribe as to what "such other qualifications" a person must possess in order to qualify to be chosen as a member of parliament, that is qualifications other than those given in Article 84 (a) & (b) that relate to citizenship of India, oath or affirmation inter alia of faithfulness and allegiance to the Constitution and the prescriptio....
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.... for membership of the House of the People. The said provision generally requires a person seeking to fill a seat in the House of the People to be "an elector for any Parliamentary constituency". There was thus a material difference between the qualification of domicile within the particular State as prescribed for the Council of States and the qualification of domicile within any Parliamentary constituency in India as prescribed for the House of the People. This was subject matter of debate in the provisional Parliament on 11th May 1951, at the time of consideration of the Bill, which would later take the shape of RP Act, 1951. Mr. Nariman referred to the debate in Parliament on Section 3 of the RP Act 1951. It appears that in the course of the said debate it came to be pointed out as incongruous as to why a candidate to the Council of States should be a resident of the State concerned while a candidate to the House of the People need only be a resident in any Parliamentary constituency in the country. The record of Parliamentary debates would show that Dr. Ambedkar had explained the distinction referring to the requirement of residence within the State concerned on account of th....
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.... 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 consideration have, therefore to be examined before applying any method of construction at all. ." We endorse and reiterate the view taken in the above quoted paragraph of the Judgment. It may be desirable to give a broad and generous construction to the Constitutional provisions, but while doing so the rule of "plain meaning" or "literal" interpretation, which remains "the primary rule", has also to be kept in mind. In fact the rule of "literal construction" is ....
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....hus, 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. For instance, when Article 81(2)(b) provides for the same ratio throughout the State between the population of each constituency and the number of seats allotted to it, it does refer to seats, but in the context the use of the word "seats" was inevitable. Similarly Article 84 which lays down the qualification for the members of parliament begins by saying that a person shall not be qualified to be chosen "to fill a seat" in Parliament unless he satisfies the tests prescribed by its cla....
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....n percentage of members of the Legislative Council. It is not necessary that the person elected must either be a member of the municipal board or a graduate or himself a teacher. The electorate can elect whoever in their wisdom is considered most suited to be a representative of theirs. In G. Narayanaswami's case (supra), a Constitution Bench of this Court was considering the provisions contained in Articles 171 & 173 and Sections 5 & 6 of the RP Act, 1951. The following observations made in Paragraph 7 of the Judgment are of relevance here: - "The plain and ordinary meaning of the term "electorate" is confined to the body of persons who elect. It does not contain, within its ambit, the extended notion of a body of persons electing representatives "from amongst themselves". Thus, the use of the term "electorate", in Article 171(3) of our Constitution, could not, by itself, impose a limit upon the field of choice of members of the electorate by requiring that the person to be chosen must also be a member of the electorate." Undoubtedly, Section 6 of the RP Act, 1951 continues to require domicile within the State as a necessary qualification for a person seeking to be elected a....
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....bsp; .". The qualification of "ordinarily resident" is provided for registration as a voter in a general election for deciding the place of voting by an elector and for the preparation of electoral rolls. Under our constitutional scheme, Parliamentary or Assembly constituencies are territorially divided and hence territorial link is provided for the voter, but importantly not for the candidates. The expression "representative of each State" in Article 80 (4) of the Constitution is not a qualification and cannot be read as a condition precedent for being elected. The Constitution has dealt with "qualifications" exclusively in Article 84 of the Constitution, as would also be clear from the marginal note besides the contents of the provision itself. We agree with the submission that by definition, the word "representative" simply means a person chosen by the people or by the elected Members of the Legislative Assembly to represent their several interests in one of the Houses of Parliament. A person becomes a representative only after he is chosen in the prescribed manner. He is not a representative earlier. At best, he can claim to be called a candidate or a potential representative....
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....ates in the Council of States was part of the Constitutional scheme. The argument is found, on close scrutiny, to be devoid of merit for several reasons. First and foremost, the provisions mentioned above are not exceptional in relation to a member of the Council of States on account of his position as a registered elector in any Panchayat or Municipal area in that State for purposes of local bodies. They equally apply to the members of the House of the People and the Legislative Assemblies (as indeed, the Legislative Councils) of the State concerned. Secondly, the above provisions are part of the scheme of local self-government engrafted in the Constitution, the object sought to be achieved thereby being to provide a linkage between the local bodies and the legislature at the State and Union levels. The purpose sought to be achieved is to give to the Members of State Legislature and the Parliament access to the grass-root level, equipping them with knowledge about local problems, issues, opinions and aspirations, thereby strengthening democracy. Then, the enabling provisions may not have uniform application. Their effect would depend on the provisions enacted or to be enacted b....
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....t is of no avail to the petitioners. Concept of Residence to change with passage of time It is the argument of the Writ Petitioners that there must be a rational nexus between the State and its representatives in the Council of States. Such nexus, as per the submissions, could be found only in the requirement of residence in the State for a minimum specified period. To be able to "represent" the State, it has been urged, one has to be fully conversant with the language, current problems, needs, aspirations and interests of the people of the State and the concerns of the State Government. It is not difficult to visualize a conflict between duty and interest in the case of members belonging to one State being elected from another State on issues upon which the two States are at loggerheads. The contention of the petitioners is that the provision contained in Section 3 of the RP Act, 1951, prior to the impugned amendment, provided for a reasonable nexus between a member of the Council of States and the State from which he is elected, viz. the nexus on account of domicile. It has been argued that the amendment doing away with the said provision i.e. requirement of residence in the Sta....
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....ally to the party which appoints them. Rajya Sabha resembles the American Senate insofar as it is a continuing body. Rajya Sabha, however, differs from the US Senate insofar as its members are not elected directly by the States and there is no equality of representation of the States. Rajya Sabha resembles the Australian Senate insofar as both are based on the principle of rotation. The point which we would like to emphasize here is that even in countries where strict federalism exists, with the passage of time, the original role of the Senate of guarding interests of the States as political units has largely disappeared. With globalization, the US Senate now functions as a national institution rather than as a champion of local interests. This transformation has taken place in US due to several factors such as direct election of Senators by the people of a State, development of strong political parties advocating national programmes and development of national integration, etc. Similarly, in India, after 1990, due to relaxation of central economic control, the conceptual and theoretical framework of federalism has undergone a sea-change. The concepts of the words 'residence....
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.... 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 the provision, in the case of Section 20 of RP Act, 1950 it being the date on which a person seeks to be registered as an elector in a particular constituency. Thus, residence is a concept that may also be transitory. Even when qualified by the word "ordinarily" the word "resident" would not result in construction having the effect of a requirement of the person using a particular place for dwelling always or on permanent uninterrupted basis. Thus understood, even the requirement of a person being "ordinarily resident" at a particular pl....
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....ore 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 "representative of each State" only refers to the members and do not import any further concept or requirement of residence in the State. Absence of Justification Objects & Reasons Another submission urged is that the Statement of Objects and Reasons for the Bill which brought about the amendment itself shows the absence of justification for doing away with the will of the Parliament as earlier reflected in original Section 3 of the RP Act 1951, which was in consonance with the scheme of the Constitution. The Statement of Objects and Re....
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....he petitioners further argue that the reasons given in affidavit in reply, by Union of India, to justify the impugned amendment for amending Section 3 are different from the reasons given in the Statement of Objects and Reasons for the Bill. The Counter Affidavit of the Union of India states that the members of Legislative Assemblies are in the best position to decide who would best represent their States' interest in the Rajya Sabha. The petitioners submit that this is a doubtful proposition having regard to what the Ethics Committee of the Council of States said in its report about large sums of money being the motivating factor in electing members of the Council of States. The petitioners also lament that the well considered view expressed by an eminent body like the National Commission on Working of the Constitution has been unreasonably brushed aside. The Commission in Paragraph 5.11.5 of its report did express its view that the Parliamentary legislation that had been initiated seeking to do away with the domiciliary qualification for being chosen as a representative of any State or Union territory in the Council of States would affect "the basic federal character of the....
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....the question. In these circumstances we do not think that it would be incongruous to infer an implied ouster of the jurisdiction of the Court trying an election petition to go into the question. That inference is strengthened by the fact that under Section 100(1) (d) (iv) of the 1951 Act the result of the election must have been materially affected by non-compliance with the provisions of the Constitution or of that Act or of the rules, orders made under that Act in order that High Court may declare an election to be void. Non- compliance with the provisions of Section 19 of the 1950 Act cannot furnish a ground for declaring an election void under that clause." While disposing off the appeal, the Court concluded thus: "We think that the intention of the Parliament to oust the jurisdiction of the Court trying an election petition to go into the question whether a person is ordinarily resident in the constituency in the electoral roll of which his name is entered is manifest from the scheme of 1950 and the 1951 Acts. It would defeat the object of the 1950 Act if the question whether a person was ordinarily resident in a constituency were to be tried afresh in a court or tribunal, ....
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....ether the difficulty in giving precise definition was not a bona fide reason in view of the meaning of the expression given in Section 20 of the RP Act, 1950 or in the face of the dictionary meaning by which the said expression can be generally understood. We have already found that the provision in question leaves much to be desired and the guidance provided by law is deficient in that it does not give a clear cut definition as to how the question of ordinary residence of an individual is to be determined. Article 84 of the Constitution provides for qualifications for membership of Parliament. The requirements in Article 84 for a person to fill up a seat in either House of Parliament, including the Council of States, are: - (i) The person elected should be a citizen of India; (ii) He must subscribe an oath of affirmation as per the form set out in the Third Schedule; (iii) In the case of Council of States he must be not less than 30 years of age; (iv) He must possess such other qualifications as may be prescribed in this behalf by or under any law made by Parliament. The disqualifications for being chosen as, or for being, a member of either House of Parliament are contained ....
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....rantees the freedom to a citizen to choose a residence of his choice. There are several cases of elected representatives who may have multiple residences and may have to choose any one of them as a matter of convenience where to vote. The cases of persons maintaining multiple residences at several places would be few and far between. Even otherwise that should not have posed any problem since the requirement of law was that of ordinary residence which would not apply to each of the several residences of a person. We are not concerned with the political compulsions or considerations that are implied by some of the above- mentioned submissions of the Union of India and others supporting its stand. It is not necessary for us to examine the plea of the Union of India as to the competence or talent of, or the addition to the quality of debates or discussion in Parliament due to participation by, certain specific members of Parliament reference to whose names was sought to be made by the learned counsel in the course of arguments contesting the contentions of the writ petitioners. Suffice it to say here that the submissions on both sides would show that the erstwhile arrangement in the l....
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....Statement of Objects and Reasons of a proposed legislation is not the compendium of all possible reasons or justification. We do not find any contradiction in the stand taken by the Union of India in these proceedings in relation to the Statement of Objects and Reasons of the impugned amendment. Rendering it a case of 'No qualification' - Abdication of its Function by Parliament The counsel for the petitioners have argued that the impugned amendment has dispensed with the only qualification (the residential qualification) that had been built in by the Parliament in the provision to give meaning to the representative character of the person chosen to be the member of the Council of States, and at the same time failed to define or prescribe any other criteria which Parliament regards as relevant for the person elected being a "representative" of that State. They would submit that the marginal note "Qualification for the Membership of Council of States" which had been retained for Section 3 of the RP Act, 1951 had been rendered meaningless. The learned counsel, Mr. Nariman, would grant that, under Article 84 (c) read with Article 327 and Entry 72 of the Union List, it is wit....
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....ate Assembly in India as a representative of that State in the Council of States. Developing the above argument further, Mr. Nariman submitted that, after the impugned amendment, there is "in effect" no qualification prescribed by Parliament for the person elected being a representative of the particular State, Assembly of which has elected him, since he may be an elector in any Parliamentary Constituency "in India", which according to the Counsel is not a qualification for the person chosen by the particular State Assembly to be a "representative of" that State. It is now left to the entire subjective determination of each State Assembly, to elect any one, even one who is an elector (i.e. ordinarily resident) in any other State or one who has no connection whatsoever with the State that chooses him to be its representative in the Council of States. It has been argued that by the impugned amendment, Parliament has whilst purporting to set up "qualification" for membership to the Council of States failed to have due regard to the expression "representative of the State" in Article 80. The contention is that by this amendment, Parliament has in effect abdicated its allotted function....
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....3 SCC 415: (1974) 1 SCR 548], wherein it has been held by this Court that:- "Article 327 gives full power to Parliament subject to the provisions of the Constitution to make laws with respect to all matters relating to or in connection with elections including the preparation of electoral rolls". Parliament has the power, rather an exclusive one, under Article 246 to make laws with respect to any of the matters enumerated in the Union List of the Seventh Schedule. In exercise of the powers conferred on it under Article 246 read with Articles 84 & 327 and Entry 72 of the Union List of the Seventh Schedule to the Constitution, it is a matter for Parliament to decide by making law as to what qualifications "other" than those prescribed in the Constitution be made compulsory to be fulfilled by persons seeking to fill seats in the Council of States as representatives of the States. It is provided in Article 80 (2) that allocation of seats in the Council of States to be filled by the representatives of States and the Union Territories shall be in accordance with the provisions in that behalf contained in the Fourth Schedule. In Article 80 (4), it is provided that the representatives of....
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....ourt noticed with approval the decision of Privy Council in Joseph Theberge & Anr. v. Phillippe Laudry [(1876) 2 AC 102], and held that the right to stand as a candidate for election is not a civil right, but is a creation of statute or special law and must be subject to the limitations imposed by it. It was observed in Paragraph 19 of the Judgment as under: - "The points which emerge from this decision may be stated as follows: "(1) The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. (2) Strictly speaking, it is the sole right of the legislature to examine and determine all matters relating to the election of its own members, and if the legislature takes it out of its own hands and vests in a Special Tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it." (emphasis supplied) In the case of Hari Prasad Mulshanker Trivedi (supra), it was reiterated that: - "The right to stand for election is a statutory right and the statute can therefore regulate the manner in which the r....
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....uses (a) & (b). Parliament may or may not prescribe some such qualifications, and having prescribed some may repeal them whenever it so desires. It is difficult to accept the argument that once the Parliament prescribes a qualification, it cannot revoke or repeal it. There is no such limitation on Parliament's legislative power, which is confirmed by Entry 72 of the Union List in the Seventh Schedule. The language of Clause (c) of Article 84 creates a power and not a duty. If it is not bound to prescribe any additional qualification, it is also not bound to provide a substitute for the one done away with. The thrust of the argument of the petitioners is that 'outsider' would be given preference to an 'insider'. This need not be invariably the end result, since outcome of an election would depend on the choice of the Electoral College, viz. the legislative assembly of the State, than on any other factor. In any event, even if an 'outsider' is selected, it is too far-fetched to contend that the "character" of the House would consequently stand altered. What has been essentially done by the amendment is to provide that even a person registered as an electo....
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....s or functions. Under the aforesaid Constitutional mandate, Parliament has, inter alia, enacted the RP Acts of 1950 and 1951, as well as the impugned amendment Act. By the impugned amendment Act, the requirement of being a voter in a particular State has been done away with. Thus, in our view the arguments raised by the petitioners do not hold water. The impugned amendment to Section 3 of the RP Act, 1951 cannot be assailed as unconstitutional. It passes muster in view of legislative competence. It does not transgress the provisions of Part III of the Constitution, nor for that matter any other provision, express or implied, of the Constitution. The requirement of 'residence' cannot be read in Article 80(4) of the Constitution. The challenge thus must be repelled. Issue No.II : Secrecy of Voting Section 59 provided for the 'Manner of voting at elections' to be "by ballot in such manner as may be prescribed". Section 94 made its prescription clear by marginal note reading 'Secrecy of voting not to be infringed', giving immunity mainly to the voter against compulsion to disclose by declaring, in no uncertain terms, that "No witness or other person shall be re....
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....uirement that election to the Council of States be conducted "by secret ballot", as has been expressly provided under Article 55(3) and Article 66(1) for elections to the offices of the President of India and the Vice President of India respectively. It has been submitted that it was pursuant to the view expressed by the Ethics Committee of the Parliament in its report dated 1st December, 1998, in the wake of "emerging trend of cross voting in the Rajya Sabha and Legislative Council elections", for the elections "by open ballot" to be examined that the Union of India incorporated such provision through the impugned Act. In this context reference has been made to the "influence of money power and muscle power in Rajya Sabha elections" and also to the provisions contained in Tenth Schedule to the Constitution. Union of India contends that after considering the available material and report of the Ethics Committee, it had come to the conclusion that "the secret ballot system had in fact become counter-productive and opposed to the effective implementation of the principles of democratic representation of States in the Rajya Sabha". Further submission is that "secret ballot is not an ....
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....y 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 need to be noticed at this stage. Part VI of the RP Act, 1951 relates to "Disputes Regarding Elections". The election petitions lie under these provisions to the High Courts. Chapter III of Part VI relates to the "Trial of Election Petitions". Section 94 falling under this Chapter, as originally enacted read as under : "Secrecy of voting not to be infringed No witness or other person shall be required to state for whom he has voted at an election." The Act 40 of 2003 has added a proviso to the aforesaid provision. The amended provision now reads as under: - "Secrecy of voting not to be infringed No witness or other person shall be required to st....
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....n referred to the 'basic structure' theory and submitted that democracy was part of the basic features of the Constitution. They would submit that free and fair election was a concept inherent in the democratic values adopted by our polity. There cannot be any quarrel with these preliminary propositions urged on behalf of the petitioners. It has been authoritatively held, time and again, by this Court that democracy is a basic feature of the Constitution of India, one that is not amenable to the power of amendment of the Parliament under the Constitution. It has also been the consistent view of this Court that the edifice of democracy in this country rests on a system of free and fair elections. These principles are discernible not only from the preamble, which has always been considered as part of the Constitution, but also from its various provisions. Should there be any doubt still lurking in any mind, the following cases can be referred to, with advantage, in this context. The views of Sikri, CJ in Kesavananda Bharati, expressed in Paragraph 292, have been noticed, in extenso, earlier in the context of plea regarding federalism. He has clearly referred to "Republican ....
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....ratic set-up was part of the basic structure of the Constitution. Democracy postulates that there should be periodical elections, so that people may be in a position either to re-elect the old representatives or, if they so choose, to change the representatives and elect in their place other representatives. Democracy further contemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice. Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of defence to mass opinion. Free and fair elections require that the candidates and their agents should not resort to unfair means or malpractices as may impinge upon the process of free and fair elections." (emphasis supplied) Mohinder Singh Gill v. Chief Election Commissioner [(1978) 1 SCC 405], is another case that is significant in the present context. In Paragraph 2, the following words indicated the controversy in the preface: - "2. Every significant case has....
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....ament or any State Legislature has made valid law relating to or in connection with elections, the Commission, shall act in conformity with, not in violation of, such provisions but where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from, pushing forward a free and fair election with expedition. Secondly, the Commission shall be responsible to the rule of law, act bona fide and be amenable to the norms of natural justice insofar as conformance to such canons can reasonably and realistically be required of it as fairplay-in-action in a most important area of the constitutional order viz. elections. Fairness does import an obligation to see that no wrongdoer candidate benefits by his own wrong. To put the matter beyond doubt, natural justice enlivens and applies to the specific case of order for total re-poll, although not in full panoply but in flexible practicability. Whether it has been complied with is left open for the Tribunal's adjudication. .." (emphasis supplied) The case reported as S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra [1980 Supp. SCC 53] is also relevant for purposes at hand. Whi....
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....priate legislature and is not otherwise disqualified under the Constitution or any law on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election (Article 326); (c) holding of any asset (immovable or movable) or any educational qualification is not the eligibility criteria to contest election; and (d) under Article 324, the superintendence, direction and control of the "conduct of all elections" to Parliament and to the legislature of every State vests in the Election Commission. The phrase "conduct of elections" is held to be of wide amplitude which would include power to make all necessary provisions for conducting free and fair elections." (emphasis supplied) In People's Union for Civil Liberties (PUCL), this Court held that "It also requires to be well understood that democracy based on adult franchise is part of the basic structure of the Constitution." There can thus be no doubt about the fact that democracy is a basic feature of the Constitution of India and the concept of democratic form of government depends on a free and fair election system. It is the contention of ....
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....ransparency in the process of election would include transparency of a candidate who seeks election or re- election. In a democracy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted. 5. The right to get information in democracy is recognised all throughout and it is a natural right flowing from the concept of democracy. At this stage, we would refer to Article 19(1) and (2) of the International Covenant on Civil and Political Rights, which is as under: "(1) Everyone shall have the right to hold opinions without interference. (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice." 7. Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voter's speech or expression in case of election would include castin....
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....er 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 Paragraph 94: - "In a democratic republic, it is the will of the people that is paramount and becomes the basis of the authority of the Government. The will is expressed in periodic elections based on universal adult suffrage held by means of secret ballot.Nothing is therefore more important for sustenance of democratic polity than the voter making an intelligent and rational choice of his or her representative. For this, the voter should be in a position to effectively formulate his/her opinion and to ultimately express that opinion through ballot by casting the vote. The concomitant of the right to vote which is the basic postulate of democracy is thus twofold: first, formulation of opinion about the candidates and second, the expression of choice by casting the vote in fav....
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....preference for a candidate is nothing but freedom of expressing oneself in relation to a matter of prime concern to the country and the voter himself."(emphasis supplied) After referring to the view expressed in Jyoti Basu v. Debi Ghosal (supra) that the right to elect is "neither a fundamental right nor a common law right" but "pure and simple, a statutory right", Reddi J. in Paragraph 97 of the judgment further observed as under: - " With great reverence to the eminent Judges, I would like to clarify that the right to vote, if not a fundamental right, is certainly a constitutional right. The right originates from the Constitution and in accordance with the constitutional mandate contained in Article 326, the right has been shaped by the statute, namely the RP Act. That, in my understanding, is the correct legal position as regards the nature of the right to vote in elections to the House of the People and Legislative Assemblies. It is not very accurate to describe it as a statutory right, pure and simple. Even with this clarification, the argument of the learned Solicitor-General that the right to vote not being a fundamental right, the information which at best....
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....the State in the Council of States is a Constitutional right. Article 80 (4) merely deals with the manner of election of the representatives in the Council of States as an aspect of the composition of the Council of States. There is nothing in the Constitutional provisions declaring the right to vote in such election as an absolute right under the Constitution. Arguments based on Legislative Privileges and Tenth Schedule Be that as it may, the moot contention that has been raised by the petitioners is that the election of members of the Council of States is provided for in the Constitution and, therefore, is a part of the Constitution and that it is inherent requirement of the principle of free and fair election that the right to vote be invariably accompanied by the right of secrecy of vote so as to ensure that the freedom of expression through vote is real. Arguments based on Legislative Privileges and Tenth Schedule It is the contention of Mr. Rao that apart from Article 19(1)(a), freedom of voting is Constitutionally guaranteed to a Member of a Legislative Assembly by Article 194 (1) & (2) in absolute terms. While the right under Article 19(1)(a) is subject to reasonable restr....
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....thing said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 26 of the Constitution (Forty-fourth Amendment) Act, 1978]. (4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature." In Special Reference No.1 of 1964 [(1965) 1 SCR 413], this Court examined the provisions contained in Article 194. The issues concerned the constitutional relationship between the High ....
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....e same principle should be applied to determine whether what was said was outside the discussion on a Calling Attention Motion. It was submitted that the immunity granted by Article 105 (2) was to what was relevant to the business of Parliament and not to something that was utterly irrelevant. This Court, dealing with the contentions of the appellants, held as under: - "In our judgment it is not possible to read the provisions of the article in the way suggested. The article means what it says in language which could not be plainer. The article confers immunity inter alia in respect of "anything said ... in Parliament". The word "anything" is of the widest import and is equivalent to "everything". The only limitation arises from the words "in Parliament" which means during the sitting of Parliament and in the course of the business of Parliament. We are concerned only with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any Court this immunity is not only complete but is as it should be. It is of the essence of parliamentary system of Governm....
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....a matter of national concern" and which menace has the potency to "undermine the very foundations of our democracy and the principles which sustain it". The said amendment also added sub-Articles (2) to Article 102 and 191 that pertained to Disqualifications for membership of the Houses of Parliament and Houses of State Legislature respectively. Paragraph 1 (a) of the Tenth Schedule also confirms its application to "House" which has been defined to mean "either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State". The new sub-Articles declared, in identical terms, that a "person shall be disqualified for being a member" of either of the said Houses "if he is so disqualified under the Tenth Schedule". Paragraph 2 of the Tenth Schedule, to the extent germane here, may be extracted as under : - "2. Disqualification on ground of defection. (1) Subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House (a) XXXXXXX; or (b) if he votes or abstains from voting in such House contrary to any direction issued by the political....
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.... 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 implies, among other things, a multi-party system. Whatever the nature of federalism, the fact remains that as stated above, as per the provisions of the Constitution, every State is constituent political unit and has to have an exclusive Executive and Legislature elected and constituted by the same process as the Union Government. Under our political and electoral system, political parties may operate at the State and national level or exclusively at the State level. There may be different political parties in different States and at the national level. Consequently, situations may arise, as indeed they have, when the political parties in power in various States and at the Centre may be different. It may also happen as has happened till date that through political bargaining, adjustment and understanding, a State le....
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....tion of whips on Members of Parliament was not in accordance with the Constitutional scheme. Rejecting this argument, this Court held that it was open for Parliament to provide that its Members, who have been elected on a party ticket, act according to the decisions made by the party and not against it. In Kihoto Hollohan v. Zachillhu (supra) , it was held that: - "43. Parliamentary democracy envisages that matters involving implementation of policies of the government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefore, the means and essence of the democratic process. During the debates the Members put forward different points of view. Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not unoften the views expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration. Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate ....
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....on 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 extraordinary nature and sweep of the power and the very serious consequences that flow including the extreme penalty of disqualification the expression should be given a meaning confining its operation to the contexts indicated by the objects and purposes of the Tenth Schedule. We shall deal with this aspect separately." (emphasis supplied) In Paragraph 122, this Court proceeded to hold as under:- 122. While construing Paragraph 2(1)(b) it cannot be ignored that under the Constitution Members of Parliament as well as of the State legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the Constitution and the rules and standing orders regulating the Procedure of the House [Article 105(1) and Article 194(1)]. The disqualification imposed by Paragraph 2(1)(b) must be so construed as not to unduly impinge on the said free....
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.... in election to the Council of States. Yet, in view of the law laid down in Kihoto Hollohan v. Zachillhu (supra), it is not correct to contend that the open ballot system tends to expose the members of the Legislative Assembly to disqualification under the Tenth Schedule since that part of the Constitution is meant for different purposes. International Conventions The counsel for the petitioners have also submitted that International Instruments put emphasis on "secret ballot" since it lays the foundation for ensuring free and fair election which in turn ensures a democratic government showing the true will of the people. The significance of this emphasis lies in the recognition that it is a democratic Government that is ultimately responsible for protecting the Human Rights of the people, viz., civil, political, social and economic rights. In above context, reference was made to the Universal Declaration of Human Rights and International Convention on Civil and Political Rights (ICCPR). Universal Declaration of Human Rights, through Article 21 provides as under: - "(1) Everyone has the right to take part in the government of his country, directly or through freely chosen repres....
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....s Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr. [(1973) 4 SCC 225]; Jolly George Varghese & Anr. v. The Bank of Cochin [(1980) 2 SCC 360]; People's Union for Civil Liberties (PUCL) v. Union of India & Anr. [(1997) 1 SCC 301]; Nilabati Behera v. State of Orissa & Ors. [1993 (2) SCC 746]; Kapila Hingorani v. State of Bihar [2003 (6) SCC 1] and State of W.B. v. Kesoram Industries Ltd. & Ors. [(2004) 10 SCC 201]. According to Mr. Sachar, the emphasis in the aforementioned judgments is that evolving jurisprudence of human rights is required to be used in interpreting the Statutes. This argument is in addition to the general argument that in the absence of any law, this Court may lay down guidelines in consonance with the principles laid down in the International Instruments so as to effectuate the Fundamental Rights guaranteed under the Constitution. There can be no quarrel with the proposition that the International Covenants and Declarations as adopted by the United Nations have to be respected by all signatory States and the meaning given to them have to be such as would help in effective implementation of the rights declared therein. The applicability of the Univ....
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....f power conferred by the Articles in Part XV titled "Elections" in the Constitution. It was the view of this Court that "Any interpretation of Section 94 must essentially subserve the purpose for which it is enacted. The interpretative process must advance the basic postulate of free and fair election for setting up democratic institution and not retard it. Section 94 cannot be interpreted divorced from the constitutional values enshrined in the Constitution". This Court ruled thus: - "13. Secrecy of ballot undoubtedly is an indispensable adjunct of free and fair elections. A voter had to be statutorily assured that he would not be compelled to disclose by any authority as to for whom he voted so that a voter may vote without fear or favour and is free from any apprehension of its disclosure against his will from his own lips. .. As Section 94 carves out an exception to Section 132 of the Evidence Act as also to Section 95 of the Act it was necessary to provide for protection of the witness if he is compelled to answer a question which may tend to incriminate him. Section 95 provides for grant of a certificate of indemnity in the circumstances therein set out. A conspectus o....
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.... privilege. It was noticed that the provision refers to a "witness or other person". Thus, it is meant to protect the voter both in the court when a person is styled as a witness and outside the court when he may be questioned about how he voted. It was found that no provision existed as could expose the voter to any penalty if he voluntarily chooses to disclose how he voted or for whom he voted. With a very clear view that 'Secrecy of ballot' as provided in Section 94 was mooted "to ensure free and fair elections", the Court opined thus: - " If secrecy of ballot instead of ensuring free and fair elections is used, as is done in this case, to defeat the very public purpose for which it is enacted, to suppress a wrong coming to light and to protect a fraud on the election process or even to defend a crime viz. forgery of ballot papers, this principle of secrecy of ballot will have to yield to the larger principle of free and fair elections .." (emphasis supplied) The Court, after noticing that the RP Act, 1951 is a self- contained Code on the subject of elections and reiterating that "there is one fundamental principle which permeates through all democratically elected parl....
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....f there is fraud, forgery or other illegal act and the disclosure sub-serves the purpose of administration of justice. The contention of the learned Counsel for the petitioners is that what is significant is that when a voter is casting his vote he should be able to do so according to his own conscience, without any fear, pressure, or coercion. The fear that under any law, he maybe compelled to disclose for whom he had voted can also not interdict his choice. Assurance of such freedom is an essence of secrecy of ballot and constitutes an adjunct of free and fair election. Liberty of the voter to choose to disclose his ballot because of fraud or forgery is only for achieving the very same purpose of free and fair election. This liberty, however, does not affect, according to the petitioners, in any way the general principle that secrecy of ballot forms a basis of free and fair election, which is necessary for survival of democracy. Mr. Sachar also pressed in aid the decision in Charles W. Burson v. Mary Rebecca Freeman: [(1992) 119 L.ed. 2d 5 = 504 US 119], wherein it was held that: - "Right to vote freely for the candidate of one's choice is of the essence of a democratic soci....
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....mittee 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 exercise the right on the subject or issue in question. In Black's Law Dictionary it is explained as, "the expression of one's will, preference, or choice, formally manifested by a member of a legislative or deliberative body, or of a constituency or a body of qualified electors, in regard to the decision to be made by the body as a whole upon any proposed measure or proceeding or in passing laws, rules or regulations, or the selection of an officer or representative". Right to vote means right to exercise the right in favour of or against the motion or resolution. Such a right implies right to remain neutral as well. " (emphasis supplied) Mr. Sachar, while submitting that the sanctity and purity of election where voter casts his choice without any fear and favour can be ensured only if it is by secret ballot, argued that it is secret ballot, which is the bedrock of free and fair election. There cannot be any distinc....
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....der of the High Court was on the anvil of the latter principle. The factual matrix of the case would show that the appellant and the first respondent were contesting candidates for the Kovalam Assembly Seat in the State of Kerala. In the counting, the appellant was declared elected on ground that he had obtained 21 votes in excess of the first respondent. The respondent moved the election petition mainly on ground of impersonation and double voting by 19 specified voters. The High Court on examining the evidence led by the parties on the issue found that certain ballot papers deserved being picked out from the respective ballot boxes to be rejected as void. The ministerial work for the purpose was assigned to the Joint Registrar of the High Court. On such exercise being undertaken, the election petitioner entitled himself to be declared elected instead of the appellant. The High Court had located the void votes on the assumption that both the contestants had bowed to the principle embodied in Section 64(4) of the RP Act for the sake of "purity of elections" principle and were willing partners to have the void element identified and extricated from the voted lot. In this view, rejec....
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.... by "secret ballot". Articles 55(3) and 66(1) of the Constitution provide for elections of the President and the Vice President respectively, referring to voting by electoral colleges, consisting of elected members of Parliament and Legislative Assembly of each State for purposes of the former office and members of both Houses of Parliament for the latter office. In both cases, it was felt necessary by the framers of the Constitution to provide that the voting at such elections shall be by secret ballot through inclusion of the words "and the voting at such election shall be by secret ballot." If the right to vote by itself implies or postulates voting in secrecy, then Articles 55(3) and 66(1) would not have required inclusion of such words. The necessity for including the said condition in the said Articles shows that "secret ballot" is not always implied. It is not incorporated in the concept of voting by necessary implication. It follows that for 'secret ballot' to be the norm, it must be expressly so provided. To read into Article 80(4) the requirement of a secret ballot would be to read the words "and the voting at such election shall be by secret ballot" into the prov....
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.... political parties that is to be trusted rather than the average legislator, which view is not very complimentary to the respect and dignity of the legislators, besides being factually unacceptable. In above context, the Counsel referred to the following words of Dr. B.R. Ambedkar on the issue as to how the dignity of an individual should be upheld in the political system: - "The second thing we must do is to observe the caution which John Stuart Mill has given to all who are interested in the maintenance of democracy, namely, not "to lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institutions". There is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness. As has been well said by the Irish patriot Daniel O'Connel, no man can be grateful at the cost of his honour, no women can be grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty. This caution is far more necessary in the case of India than in the case of any other country. For in India, Bhakti or what may be called the path of devotion ....
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.... free and fair election which is necessary for preserving the democracy. On the other hand, the Attorney General submitted that since the bulk of the candidates are elected under the party system, the principle that a person elected or given the nomination of a party should not be lured into voting against the party by money power is wholesome and a salutary one. Mr. Sachar has pointed out that the Conduct of Election Rules, 1961 were framed and notified in exercise of powers delegated by the RP Act, 1951. In the wake of the impugned amendment of Sections 59, 94 and 128 of RP Act, 1951, the said Rules have also been amended by the Central Government through S.O. 272 (E) dated 27.02.2004. This amendment has resulted in Rule 39-AA being added to the Rules for conduct of poll in election to the Council of States provided in Part VI. Earlier, Rule 39-A had been added to the said Rules in furtherance of the system of secret ballot. Rule 39-A may be first taken note of. It reads as under: - " 39-A. Maintenance of secrecy of voting by electors within polling station and voting procedure. (1) Every elector, to whom a ballot paper has been issued under rule 38-A or u....
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....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 specified in sub-rules (6) to (8) of Rule 39-A as if such ballot paper had been taken back under sub- rule (5) of that rule. (2) Every political party, whose member as an elector casts a vote at a polling station, shall, for purposes of sub-rule (1), appoint, in Form 22-A, two authorized agents. (3) An authorized agent appointed under sub-rule (2) shall be present throughout the polling hours at the polling station and the other shall relieve him when he goes out of the polling station or vice versa." Since Rule 39-AA is required to be read with Rule 39-A, the former is necessarily an exception to the general rule in all other elections conducted under the RP Act, 1951 by the Election Commission. The norm has been, prior to the impugned amendment, that the voting shall be by a secret ballot, in which all concerned, including the electors are expected to preserve the sanctity of the vote by keeping it secret. But as already observed, the privilege to keep the vote secret is that of ....
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....votes would be disclosed to anyone or would result in victimization. There is no party affiliation and hence the choice is entirely with the voter. This is not the case when elections are held to the Council of States as the electors are elected members of the legislative assemblies who in turn have party affiliations. The electoral systems world over contemplate variations. No one yardstick can be applied to an electoral system. The question whether election is direct or indirect and for which house members are to be chosen is a relevant aspect. All over the world in democracies, members of the House of Representatives are chosen directly by popular vote. Secrecy there is a must and insisted upon; in representative democracy, particularly to upper chamber, indirect means of election adopted on party lines is well accepted practice. In "Australian Constitutional Law" [2nd Edition) by Fajgenbaum and Hanks, it is stated at page 51, that: "Section 24 of the Australian Constitution embodies three principles, i.e., representative democracy, direct popular election and character of the House of representative democracy predicates enfranchisement of the electors, the existence of an ele....
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....ined, whenever necessary, in the following manner:- (i) A quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of the senators; (ii) The number of members to be chosen in each State shall be determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one-half of the quota, once more member shall be chosen in the State. But notwithstanding anything in this section, five members at least shall be chosen in each Original State. 30. Until the Parliament otherwise provides, the qualifications of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more numerous House of Parliament of the State; but in the choosing of members each elector shall vote only once. 128. This Constitution shall not be altered except in the following manner: The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parl....
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.... of Representatives." Section 24 is quite similar to Article 80(4) and Section 30 to Article 84 of our Constitution. In the case of Judd v. Mckeon reported in (1926) 38 CLR 380 at page 385, it is stated as follows: "The extent of franchise in a democracy is a matter of fundamental importance. The purpose behind section 24 of the Australian Constitution is to ensure that the members of the Senate are chosen directly by popular vote and not by indirect means, such as, by the parliament or the legislative assembly or by the executive or by an electoral college. Section 24 of the Australian Constitution says that the members of the Senate shall be chosen by the people, which means, by people qualified to vote." (emphasis supplied) In the case of King v. James reported in (1972) 128 CLR 221 at page 229, it has been held as follows: "The fact that the world 'people' is used in section 24 of the Australian Constitution in contra-distinction to the word "elector" in Sections 8, 30 and 128 shows that the framers of the Constitution drafted Section 24 with the idea of providing in that section the manner of choosing rather than emphasizing the people who were to choose." (emphasi....
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....ir elections'. It is the concept of 'free and fair elections' in terms of an electoral system which provides content and meaning to the 'right to vote'. In other words, 'right to vote' is not an ingredient of the free and fair elections. It is essential but not the necessary ingredient. In the aforesaid case, the dispute was whether the Electoral Act could prescribe only one specific means as proof of enrolment on the voters roll for voting. Under Electoral Act, I.D. card was prescribed as the only proof of enrolment on the voters roll. This was challenged. Rejecting the objection, the Constitutional Court through Yacoob, J, on behalf of the majority held: [10] The aspect of the Electoral Act in issue regulate the way in which citizens must register and vote. The question which must be answered is whether these requirements constitute an infringement of the right to vote. This can only properly be done in the context of an analysis of the nature, ambit and importance of the right in question, the effect and importance of other related constitutional rights, the inter- relationship of all these rights, the importance of the need for an effective exerci....
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....visions relevant to the regulation of the exercise of the right to vote. Their effect is the following: (a) National, provincial and municipal elections must be held in terms of an electoral system which must be prescribed by national legislation. (b) The electoral system must, in general, result in proportional representation. (c) Elections for the national assembly must be based on the national common voters roll. (d) Elections for provincial legislatures and municipal councils must be based on the province's segment and the municipality's segment of the national common voters roll respectively. The existence of, and the proper functioning of a voters roll, is therefore a constitutional requirement integral both to the elections mandated by the Constitution and to the right to vote in any of them. [15] The requirement that only those persons whose names appear on the national voters roll may vote, renders the requirement that South African citizens must register before they can exercise their vote, a constitutional imperative. It is a constitutional requirement of the right to vote, and not a limitation of the right. [16] The process of registration and voting need....
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....tions as encapsulated in the Constitution must be addressed both in relation to the rationality of the provision and to whether it infringes the right. Although it was specifically mentioned in response to questions by a member of the Court that the appellant relied on facial inconsistency, no substantial argument was advanced in support of such a contention. Secondly, the argument was that the consequences of the documentary requirements constituted a denial of the right to vote to millions of South African citizens who were not in possession of the bar-coded ID. Many of these persons (millions of people), so it was argued, would not be able to vote for a variety of inter-related reasons. The submissions were that the Department of Home Affairs (the department), charged with the responsibility of issuing these documents, did not have the capacity to produce them timeously, that the cost of acquiring the documents constituted a real impediment and that potential voters were not aware, or had not been made sufficiently aware, of the documentary requirements to enable them to apply for the documents in time. It was contended in this context that South African citizens who were in pos....
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....y, to determine the nature of the consequence that is impermissible. The consequence that will be impermissible in the present case can best be determined by focusing on the question as to what Parliament must achieve. Parliament must ensure that people who would otherwise be eligible to vote are able to do so if they want to vote and if they take reasonable steps in pursuit of the right to vote. More cannot be expected of Parliament. It follows that an impermissible consequence will ensue if those who wish to vote and who take reasonable steps in pursuit of the right, are unable to do so. [22] It is necessary to determine the circumstances that are to be taken into account in deciding whether the impugned provisions infringe the right to vote. There are two possibilities. A court can make an evaluation in the light of the circumstances pertaining at the time the provisions were enacted, or those which exist at some later date when the constitutionality of the provisions are challenged. This Court has adopted an objective approach to the issue of the constitutionality of statutory provisions. A pre-existing law becomes invalid to the extent of its inconsistency with the Constituti....
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....l of ensuring that all persons who want to vote, and who take reasonable steps in pursuit of that right, are able to do so. I conclude, therefore, that the Act would infringe the right to vote if it is shown that, as at the date of the adoption of the measure, its probable consequence would be that those who want to vote would not have been able to do so, even though they acted reasonably in pursuit of the right. Any scheme which is not sufficiently flexible to be reasonably capable of achieving the goal of ensuring that people who want to vote will be able to do so if they act reasonably in pursuit of the right, has the potential of infringing the right. That potential becomes apparent only when a concrete case is brought before a court. The appellant bears the onus of establishing that the machinery or process provided for is not reasonably capable of achieving that purpose. As pointed out in the previous paragraph, it might well happen that the right may be infringed or threatened because a governmental agency does not perform efficiently in the implementation of the statute. This will not mean that the statute is invalid. The remedy for this lies elsewhere. The appellant must f....
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....rst question to be decided, therefore, is whether the scheme prescribed by the Electoral Act is rational. Rationality of the statutory provisions [25] It is, in my view, convenient to determine whether the impugned provisions are rationally related to a legitimate governmental purpose in two stages. The first part of the enquiry is whether a facial analysis of the provisions in issue, in relation to the Constitution, has been shown to lack rationality; the second is whether these provisions can be said to be arbitrary or capricious in the light of certain circumstances existing as at the date of the adoption of the statute. Effect of the relevant circumstances [28] The facial analysis demonstrates that the statutory provisions asserting the disputed documentary requirements are rationally related to the legitimate governmental purpose of ensuring the effective exercise of the right to vote. I will now examine whether the disputed measures can be said to be arbitrary or capricious in the light of the circumstances which, according to the appellant, were relevant." It is, therefore, evident that the right to vote is a concept which has to yield to a concept of the attainment of fr....
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....oportional representation' has been eloquently brought out in the case of United Democratic Movement v. President of the Republic of South Africa and Others reported in 2003 (1) SA 495, where the question before the Supreme Court was: whether 'floor crossing' was fundamental to the Constitution of South Africa. In this judgment the concept of proportional representation vis-`-vis constituency-based representation is highlighted. The relevant passages from the said judgment read as under: "24. The first question that has to be considered is the meaning of the phrase "a multi-party system of democratic government" in the context of section 1(d) of the Constitution. It clearly excludes a one-party state, or a system of government in which a limited number of parties are entitled to compete for office. But is that its only application? 25. The phrase is not a term of Article We were referred to no authority on political science or the South African Constitution that offers a meaning of these words. Nor can any assistance be gleaned from commentaries on the South African Constitution. Most authors seem to regard the meaning of the phrase to be self-evident and to require n....
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....e party, and not the members, which is entitled to the seats, and if a member is allowed to defect, that distorts the proportionality that the system was designed to achieve. 31. There is a tension between the expectation of voters and the conduct of members elected to represent them. Once elected, members of the legislature are free to take decisions, and are not ordinarily liable to be recalled by voters if the decisions taken are contrary to commitments made during the election campaign. 32. It is often said that the freedom of elected representatives to take decisions contrary to the will of the party to which they belong is an essential element of democracy. Indeed, such an argument was addressed to this Court at the time of the certification proceedings where objection was taken to the transitional ante-defection provision included in Schedule 6 to the Constitution. It was contended that submitting legislators to the authority of their parties was inimical to "accountable, responsive, open, representative and democratic government; that universally accepted rights and freedoms, such as freedom of expression, freedom of association, the freedom to make political choices and....
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....system of elections may operate to the prejudice of smaller parties, yet it could hardly be suggested that such a system is inconsistent with democracy. If defection is permissible, the details of the legislation must be left to Parliament, subject always to the provisions not being inconsistent with the Constitution. The mere fact that Parliament decides that a threshold of 10% is necessary for defections from a party, is not in our view inconsistent with the Constitution. Rule of law 55. Our Constitution requires legislation to be rationally related to a legitimate government purpose. If not, it is inconsistent with the rule of law and invalid. 68. In the pharmaceuticals Manufacturers case it was pointed out that rationality as a minimum requirement for the exercise of public power, "does not mean that the courts can or should substitute their opinions as to what is appropriate, for the opinions of those in whom the power has been vested. As long as the purpose sought to be achieved by the exercise of public power is within the authority of the functionary, and as long as the functionary's decision, viewed objectively, is rational, a court cannot interfere with the decisio....
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....'open ballot' and it would not violate the concept of 'free and fair elections' which concept is one of the pillars of democracy. Further, every vote on a motion inside the House is by an open ballot. The election of a Speaker, Deputy Speaker of the House of the People and the Deputy Chairperson of the Council of States is by a division which is a system of open ballot. Reference may be made in this respect to Rule 7, 8, 364, 365, 367, 367A, 367AA and 367B of Rules of Procedure and the Conduct of Business in the Lok Sabha and Rule 7, 252, 253 and 254 of Rules of Procedure and Conduct of Business in the Council of States. In above view, the justification of the impugned amendment on the reasoning that open voting eradicates the evil of cross-voting by electors who have been elected to the Assembly of the particular State on the basis of party nomination cannot be lightly brushed aside. The submission on behalf of the Petitioners fails to take into account the distinction between direct elections and indirect elections. This is not a case of direct election by an individual voter in any particular election. This is a case of indirect election by members of the Legisl....
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.... purity of elections should normally co-exist. But in the case of the Council of States, the Parliament in its wisdom has deemed it proper that secrecy of ballot should be done away with in such an indirect election, to ensure purity of election. The procedure by which an election has to be held should further the object of a free and fair election. It has been noted by the Parliament that in elections to the Council of States, members elected on behalf of the political parties misuse the secret ballot and cross vote. It was reported that some members indulge in cross voting for consideration. It is the duty of the Parliament to take cognizance of such misbehaviour and misconduct and legislate remedial measures for the same. Breach of Discipline of political parties for collateral and corrupt considerations removes the faith of the people in a multi party democracy. The Parliament, therefore, necessarily legislated to provide for an open ballot. A multi party democracy is a necessary part of the basic structure of the Constitution. An amendment to law intended to restore popular faith in parliamentary democracy and in the multi party system cannot be faulted. The principle of secr....