Kuldip Nayar V.

Union of India

Submitted By: Gurdeep Singh

Roll no.: 17068
 Brief history 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.
•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.
 Contentions raised by the plaintiff
• 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?
• 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?
 Isssue 1 : Basic structure doctrine
• It is well settled that legislation can be declared invalid or unconstitutional only on
two grounds namely, (i) lack of legislative competence and (ii) violation of any
fundamental rights or any provision of the Constitution.
• 'Residence' is not the constitutional requirement and, therefore, the question of
violation of basic structure does not arise.
• There is no constitutional requirement for a member of the Council of States to be
either an elector or an ordinary resident of the State which he represents.
• The legislative history indicates that residence is not a constitutional requirement
of clause (4) of Article 80 and just a matter of qualification.
• The said amendments did not alter or distort the character of the Council of States.
• Domicile is a matter of qualification under Article 84(c).
• India does not have a strict federal character
• Federalism under Indian Constitution leans in favour of a strong centre.
• The right to be elected is indisputably a statutory right, i.e., the right to stand for
elections can be regulated by law made by Parliament.
 Issue No II : the secrecy in ballot vis a vis
free and fair elections

• Ethics Committee of the Parliament"emerging trend of cross voting in the

Rajya Sabha and Legislative Council elections", for the elections "by open
ballot.”
• To avoid cross voting and wipe out evils of corruption as also to maintain the
integrity of our democratic set-up. (reasonable restriction under Article 19(2))
• There is no constitutional requirement that election to the Council of States be
conducted "by secret ballot.
• Article 55(3) and Article 66(1) for elections to the offices of the President of India and
the Vice President of India respectively.(nature of election whether direct or indirect)
• It is not correct to hold that a right to vote invariably carries as an implied term, the
right to vote in secrecy.
• Free and fair elections is a higher principle than secrecy of ballot" and hence the
latter must yield to "purity of election" in larger public interest.
 Conclusion
• ‘It is no part of federal principle that the representatives of
state must belong to that state’. The word ‘representative
of each state’ only refers to the members and do not import
any further concept or requirement of residence in the
state.
• Similarly the court found no violation of any constitutional
provision or principle in the amended Section 59 of RP Act
insofar as it required election to Rajya Sabha by open
ballot.
• Secrecy of ballot, the court held, was not essential feature
of democracy which is a basic feature of our constitution.