CONSTITUTIONAL LAW ASSIGNMENT

CASE COMMENT ON KULDIP NAYAR V. UNION OF INDIA AIR

2006 SC 3127

Submitted to – Made by –
Dr. Santosh Kumar Sharma Mr. Shivam
Assistant Professor of Law 1020202126
(Senior Scale) BA-LLB (Hons.)
3rd Semester

ACKNOWLEDGEMENT
Each project, anyway huge or little it could be and anyway significant it is, is effective
generally because of the endeavours and commitment of various people who have
helped in the manner they can, by giving data identified with it or by offering guidance
that is fundamental in the consummation of the task. I genuinely like the help of these
individuals and express gratitude toward them for their help and direction that was
instrumental in making this undertaking a triumph.

I Shivam, an understudy of Himachal Pradesh National Law University (Shimla), am

thankful to the University for the certainty offered in me and entrusting my capacity.

I additionally acknowledge and stretch out my gratitude to my task control, Dr. Santosh
Kumar Sharma, who tutored me while assembling the undertaking. His knowledge has
been incredibly important in the finish of this venture.

I might want to expand my final expression of appreciation to every other person

engaged with helping me with the task.

DECLARATION
I, Shivam, hereby declare that this project titled “Case Comment on Kuldip Nayar V. Union
of India AIR 2006 SC 3127 ” is the result of my original research work conducted under the
supervision of Dr. Santosh Sharma, Associate Professor of Law, Himachal Pradesh National
Law University, Shimla. In all the instances where some other work has been cited, full
acknowledgement has been given. This work has never been submitted, in whole or in part, in
any institution for any award(s).

Name of the student:

SHIVAM Date: -4th November 2021

ABBREVIATIONS
 Administration Admin.

Constitution Consti.

India Ind.

Discussion Disc.

LIST OF ACTS REFFERRED

1. Representation of the People Act, 1951

2. Representation of People (Amendment) Act, 1951
3. Army Act, 1950
4. Government of India Act, 1915

5.Indian Constitution , 1950

FACTUAL BACKGROUND OF THE CASE

By the Amendment of Representative of People Act 2003, the requirement of “domicile” in
the State Concerned for getting elected to the Council of States was deleted.There was also
amendments in Sections 59, 94 and 128 of the Representative of People Act, 1951 by which
Open Ballet System was introduced. By writ petition under Article 32 of the Constitution of
India, petitioner challenged the amendments made in the Representation of People Act, 1951
(for short, ‘the RP Act’, 1951) through Representation of People (Amendment) Act 40 of
2003 which came into force from 28th August, 2003.There was a further challenge to the
amendments in Sections 59, 94 and 128 of the RP Act, 1951 by which Open Ballet System is
introduced.The requirement of “domicile” in the State Concerned for getting elected to the
Council of States which was deleted in section 3 of RP act, which, according to the petitioner
violates the principle of Federalism, a “basic structure” of the Constitution. Also the Open
Ballot System violates the principle of “secrecy” which, according to the petitioner, is the
essence of free and fair elections as also the voter’s freedom of expression which is the basic
feature of the Constitution and the subject matter of the fundamental right under Article 19(1)
(a) of the Constitution.

ISSUES AND FACT OF LAW

1. Whether by the amendment of Representative of people Act 2003, in which the

requirement of “domicile” in the State Concerned for getting elected to the Council of States
is deleted violates the principle of Federalism, a basic structure of the Constitution?

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

CONTENTIONS
  Deletion of the requirement of “domicile” in the State Concerned for getting elected
to the Council of States violates the principle of Federalism, a basic structure of the
Indian Constitution and the Open Ballet System violates the principle of “secrecy”.
This principle of secrecy is the essence of free and fair elections as also the voter’s
freedom of expression which is the basic feature of the Constitution and the subject
matter of the fundamental right under Article 19(1)(a) of the Constitution.

CONTENTIONS OF THE PETITIONERS

 The learned senior counsel for the petitioner, contended that the impugned
amendment to Section 3 of the RP Act, 1951 1offends the principle of Federalism, the
basic feature of the Constitution; it seeks to change the character of republic which is
the foundation of our democracy and that it distorts the balance of power between the
Union and the States and is, therefore, violative of the provisions of the Constitution.
It was also contended that the nomenclature “Council of States” indicates the federal
character of the House and a representative who is not ordinarily resident and who
does not belong to the State concerned cannot effectively represent the State.

 The impugned amendment and introduction of open ballot system violates the right of
secrecy by resorting to open ballot system that is nothing but a political move by
clique in political parties for their own achievement. It is contended that the impugned
amendments violate the Fundamental Right under Article 19(1)(a) of the Constitution
as well as the provisions in the Representation of the People Act, 1951 2, Universal
Declaration of Human Rights and International Covenant on Civil and Political
Rights.

 The basic structure doctrine is an Indian judicial principle that there are certain basic
features of the Constitution of India that cannot be altered or destroyed through
amendments by the parliament. The basic structure doctrine applies only to
constitutional amendments. The petitioner challenged that the amendments violate the
Basic Structure of the constitution.

1
Indian Constitution , 1950
2
Representation of People (Amendment) Act, 1951
 

CONTENTIONS OF THE RESPONDENT

 It was submitted on behalf of Union of India that basic structure doctrine is

inapplicable to Statutes The respondent contended that residence was never the
constitutional requirement. It was never treated as an essential ingredient of the
structure of the Council of States. The legislative history of constitutional enactments
like the GI Act shows that residence or domicile is not the essential ingredients of the
structure and the composition of the Upper House.

 The Court also held that it is no part of federal principle that representatives of state
must belong to that state. Hence, if Indian Parliament in its wisdom had chosen not to
require residential qualification, it would definitely not violate basic feature of
federalism. Court very technically held that, residence is not a constitutional
requirement of Article 80(4)3, it is a matter of qualification coming under Article 84.
Parliament is competent to prescribe qualification from time to time depending upon
fact of the situation. Question of violation of basic structure did not arise. Court also
held that the representative character is to be read only after the person is being
elected to the council of stated, and not before that.

 Further, an ordinary legislation cannot be challenged on ground of violation of basic

structure of Constitution. Right to be elected is pure and simple a statutory right that
can be created and taken away by parliament and must always be subject to statutory
limitation.

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

3
Indian Constitution , 1950
 his vote to authorized agent of his party and also nowhere in law it is mentioned that
“secret ballot” is the only system .

DECISION HELD

 Rejecting all the grounds, a unanimous 5 judge bench found no infraction of any
constitutional provision or principle. Admitting that India is a federal state of its kind,
the court held that ‘It is no part of federal principle that the representatives of state
must belong to that state’. The word ‘representative of each state’ only refers to the
members and do not import any further concept or requirement of residence in the
state. Similarly, the court found no violation of any constitutional provision or
principle in the amended Section 59 of RP Act4 insofar as it required election to Rajya
Sabha by open ballot. The court held that secrecy of ballot, was not essential feature
of democracy which is a basic feature of our constitution.

RATIO DECENDI

Under a list system of proportional representation, it is parties that the electorate votes
for, and parties which must be accountable to the electorate. A party which abandons
its manifesto in a way not accepted by the electorate would probably lose at the next
election. In such a system an anti-defection clause is not inappropriate to ensure that
the will of the electorate is honoured. An individual member remains free to follow
the dictates of personal conscience. This is not inconsistent with democracy. An ante-
defection clause enables a political party to prevent defections of its elected members,
thus ensuring that they continue to support the party under whose aegis they were
elected. It also prevents parties in power from enticing members of small parties to
defect from the party upon whose list they were elected to join the governing party. If
this were permitted it could enable the governing party to obtain a special majority
which it might not otherwise be able to muster and which is not a reflection of the
views of the electorate. This objection cannot be sustained."

In the result the objection to the four Acts on the grounds that they are inconsistent
with the founding values and the Bill of Rights must fail. That makes it unnecessary

4
Representation of the People Act, 1951
 to consider whether such provisions can be amended by inference, or whether it is
necessary if that be the purpose of an amendment, to draw attention to this in the
section 74(5) notices, and to state specifically that the provisions of section 74(1) or
74(2), as the case may be, are applicable to such amendments. "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 Legislative Assembly who owe their membership
to the Legislative Assembly having been elected by reason of their being sponsored
and promoted by the political parties concerned.

OBITER DICTUM

The court recalled the following views that in Indira Nehru Gandhi v. Raj Narain: - "
The contention that "democracy" is an essential feature of the Constitution is
unassailable. If the democratic form of government is the cornerstone of our
Constitution, the basic feature is the broad form of democracy that was known to Our
Nation when the Constitution was enacted, with such adjustments and modifications
as exigencies may demand but not so as to leave the mere husk of a popular rule. 5
Democracy is not a dogmatic doctrine and no one can suggest that a rule is
authoritarian because some rights and safeguards available to the people at the
inception of its Constitution have been abridged or abrogated or because, as the result
of a constitutional amendment, the form of government does not strictly comport with
5
SCC 1975 AIR 2299
 some classical definition of the concept. The needs of the nation may call for severe
abnegation, though never the needs of the rulers and evolutionary changes in the
fundamental law of the country do not necessarily destroy the basic structure of its
government. (Emphasis supplied) Thus, we do not find merit in any of the contentions
raised by the petitioners to question the Constitutional validity of the introduction
through the impugned amendment of "open ballot" system of election to fill the seats
of the representatives of States in the Council of States. It is provided in Article 80 (2)
that allocation of seats in the Council of States to be filled by the representatives of
States and the Union Territories shall be in accordance with the provisions in that
behalf contained in the Fourth Schedule.

In Article 80(4), it is provided that the representatives of each State shall be elected by
the elected Members of the Legislative Assemblies of the States in accordance with
the system of proportional representation by means of a single transferable vote.
Apart from this, the Constitution does not put any restriction on the legislative powers
of the Parliament in this regard. The amendments in Sections 3, 59, 94 and 128 of the
Representation of the People Act, 19516 by the Representation of the People
(Amendment) Act, 2003 (40 of 2003) has been made in exercise of the powers
conferred on the Parliament under Article 246 read with Articles 84 and 327 and
Entry 72 of the Union List of the Seventh Schedule to the Constitution.

The impugned amendment does not infringe any Constitutional provision. It cannot be
found to be violative of fundamental rights in Part III of the Constitution. It is not
disputed that Parliament has legislative competence to enact the amending Act. In
these facts and circumstances, the impugned legislation cannot be struck down as
unconstitutional. All the Writ Petitions questioning the Constitutional validity of the
amendments brought about in the Representation of People the Act, 1951 through the
Representation of the People (Amendment) Act, 2003 (Act No.40 of 2003), being
devoid of merits are hereby dismissed.

SIGNIFICANCE/CONTRIBUTION

 This decision laid down by the majority in this case has been upheld by the Supreme
Court in a plethora of cases, the first opportunity being made available in 1977 in
6
Representation of People (Amendment) Act, 1951
 State of Karnataka v. Union of India and Anr wherein Beg C.J., delivering the
judgment for the majority relied on the majority opinion (Justice Chandrachud’s
opinion) in the Election Case and held that in every case where reliance is placed
upon the doctrine of Basic Structure, in the course of an attack upon legislation,
whether ordinary or constituent, what is put forward as part of “a basic structure”
must be justified by references to the express provisions of the Constitution and went
on to hold that the doctrine would not apply to determine the validity of ordinary
legislations. The Court upheld this principle in a plethora of cases before reiterating
the principle recently in, Kuldip nayar vs. UOI.7
 In the Kuldip Nayar case, amendments introducing the open ballot system were under
challenge, but was dismissed by the court. The Supreme Court observed: “The
contention that the right of expression of the voter at an election for the Council of
States is affected by open ballot is not tenable, as an elected MLA would not face any
disqualification from the membership of the House for voting in a particular
manner.”. The Court said the member “may at the most attract action from the
political party to which he belongs.” So, In 2013, a three-Judge Bench of the Supreme
Court said NOTA was also in use in 13 countries, including the United States, France,
Brazil, Bangladesh, Sweden and Spain. The Election Commission, in October 2013,
issued directions for providing the NOTA option in elections. But then, doubts were
raised about its applicability in the Rajya Sabha polls. After examining the issue, the
EC on January 24, 2014, directed that the option would also apply for elections to the
Rajya Sabha. In 2014, while extending the NOTA option to the Legislative Council
elections, the electoral body gave further directives on its use. “In view of the
existing rules, the electors — despite any party whip — can exercise their choice
and in doing so, they do not face disqualification as legislators.

BIBLIOGRAPHY

http://www.legalservicesindia.com/article/2216/Kuldip-Nayar-V.-Union-of-
India-AIR-2006-SC-3127.html

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SCC AIR 2006 SC 3127
https://lawtimesjournal.in/kuldip-nayar-v-union-of-india-and-ors-case-
summary/

https://vakeelkhoj.com/blog-1/f/kuldip-nayar-v-union-of-india-air-2006-sc-3127