Author: Shruti Bharat Mohite

Edited by: Sulesh Choudhary

ABSTRACT / HEADNOTE 

 In the case Kuldeep Nayar Vs Union of India, Kuldeep nayar is a petitioner and he files a writ petition under Article 32 of constitution of India, challenging the changes made in The Representation of people act, 1951 through the representation of people (Amendment) Act, 40 of 2003 majorly amended two provisions

• Deletion of ‘domicile’ requirement in state concerned for the elections of state council.
• Introduction of ‘open ballot system’ in the elections of state council.

Petitioner contended that the elimination of ‘domicile’ requirement to get elected in Rajya Sabha violates the principle of federalism and the introduction of ‘open ballot system’ in council of state infringe on Article 19(1)(a) -freedom of expression. On the behalf OF Union of India respondent shri. vahanvati argued that deletion of domicile requirement doesn’t violate federalism principle as it creates multiple & greater choices for choose as a representative of state in issue and the use of ‘open ballot’ in elections of council of states make election more transparent & accountable. Voters are free to express their opinions even if they used open ballot system.

After listening the arguments of both parties’ court came to the conclusion that firstly, deletion if domicile requirement doesn’t violate principle of federalism. Court said that there is no compulsion that the representative of state should belongs to that state. In the principle of federalism nowhere is written about compulsion of residency. The court stated that this amendment under section 3 had restricted the qualification of a member to the council of states but this restriction is not to any citizen of India. Rather the restriction is with respect to non-citizens & this is significant as per the court’s opinion. Secondly, the adoption of ‘open ballot system’ doesn’t infringe the article 19(1)(a) -freedom of expression. rather open ballot helps to execute free & fair elections.

Keywords (Minimum 5):

1. Article 32 of Indian constitution
2. Representation of people act,1951
3. Principle of federalism
4. Open ballot system
5. Article 19(1)(a)

CASE DETAILS

FACTS OF THE CASE

Procedural Background of the Case

In 1947, India became independent but that time India didn’t have any independent constitution or any regulations. Later legislative assembly was made to frame constitution of India. The representation of people act,1950 & 1951 was passed by parliament of India for fair conduction of elections. Article 324 to 329 of part 15 of Indian constitution provides guidelines for the countries electoral system. The act consists many provisions regarding elections like, qualification & disqualification of voters, seat allocation in the Lok Sabha & the legislative assemblies, which election method (direct & indirect) would be used for election and qualification & disqualification of MP’s & MLA’s.

The act has been amended several times.in the year 2003. Two major provisions were amended

• Deletion of domicile requirement for in the state concerned to get elected to the council of state.
• Alteration in the section 59,94, & 128 of RP act ,1951 for adopting open ballot system.

According to section 3 of RP act,1951 for to be chosen as a representative of any state there is no requirement that the member shall be a resident that state. The altered section 59 of RP act,1951 states that the elections of state council shall be conducted by open ballot. This provision also altered the section 94 and section 128 these provisions of sections were made in favour of open ballot. Section 94 says that ‘secrecy of ballot’ shall be maintained but in the case of open ballot, it can be compromise & the section 128 includes the punishment to whom violate the secrecy of ballot, but this punishment not apply to person who participates or performs any duty in open ballot.

Factual Background of the Case

In the case of Kuldeep Nayar Vs Union of India, Kuldeep Nayar a well-known journalist files a writ petition under article 32 of Indian constitution stating that amendment made in the RP Act,1951, un 2003 are unconstitutional and violates the basic structure of constitution. The RP Act, 1951, requires ‘domicile’ to the voters who are desires for getting elected in council of states of the state in issue, but later it amended by the amendment 40 of 2003. Petitioner argued that the elimination of domicile requirement to the members who are willing to get elected for state representative violates the basic principle of federalism and the further amendment in RP Act,1951 which is the introduction of the open ballot system in the elections of Rajya Sabha and the alteration in section 59,94 and section 128 petitioner contended that this amendment infringes the secrecy of ballot and violates article 19(1)(a) which is freedom of expression of the constitution of India

LEGAL ISSUES RAISED

1. Whether, Deletion of ‘domicile’ requirement to the candidates standing in Rajya Sabha elections violates the principle of federalism, basic structure of constitution?
2. Whether, use of ‘open ballot system’ in Rajya Sabha elections infringes the article 19(1)(a) and ‘principal pf secrecy’?

PETITIONER / APPELLANT’S ARGUMENTS

1. The learned counsel Shri.Sachar on the behalf of petitioner Kuldeep Nayar submitted that, the amendment made in Article 3 of RP Acr,1951 violates the principle of federalism, and the basic structure of the constitution.
2. He contended that council of states is upper house of parliament which made for representing states and union territories in the parliament. One who is not belongs to that state, cannot represent the state effectively.

• Learned counsel of petitioner argued on second issue that, the introduction of open ballot conducting Rajya Sabha elections are violating fundamental right of the voters.

1. He also contended that, these impugned amendments violate mot only the article 19(1)(a) of the constitution but also the provisions in the Representation of People Act,1951, Universal Declaration of Human Rights and International Covenant on Civil and Political Rights.
2. The learned counsel of the petitioner argued that, ‘secrecy of ballot’ in the elections of council of states is the democratic feature of the constitution.
3. He also states that alteration made in section 3,59,94, and 128, are unconstitutional and violative to the basic structure of constitution and fundamental rights of the constitution.

RESPONDENT’S ARGUMENTS

Issue of the ‘domicile’ requirement:

1. Shri. Vahanvati, Ld., Solicitor General of India, submitted that, Deletion of ‘domicile’ requirement fulfilled the insufficiencies in the conduction of RP Act.1951 and the Said amendment did not contort the features of Council of State
2. Shri.Vahanvati contended that, the word ‘state’ in the Article 80(4) of the Indian constitution doesn’t mean the requirement of residence.
3. He also states that, elected representatives of the states are citizens of the country. It doesn’t mean that it affects federalism and this amendment is chosen by Indian parliament, definitely it wouldn’t violate the principle of federalism.

 Issue of the ‘open ballot system’:

1. Respondent did argument supporting the amendment that, there are more possibility to happen corruption and proxy while maintaining ‘secrecy of voting’
2. Respondent also argued that, all important matters in the legislatures are discussed through ‘open ballot’, therefore the election of a representative is also an important, matter of the legislature.
3. This amendment didn’t snatch the ‘right to vote’ of the voters, it only changes that, voters have to disclose his vote through this amendment parliament tried to reduce corruption and maintain accountability & transparency of the election.

RELATED LEGAL PROVISIONS

Article 32 of the Indian constitution: “remedies for enforcement of rights conferred by this part,

• The right to move the supreme court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed.”

Section 3 of RP Act,1951: “qualification for membership of the council of state –

          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 India.”

Section 59 of RP Act,1951: “manner of voting at elections –

At every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed and, save as expressly provided by this act, no votes shall be received by proxy. Provided that this section shall not apply to such witnesses, or other person where he has voted by open ballot.”

Section 94 RP Act,1951: “No witness or other person shall be required to state for whom he has voted at an election. Provided that this section shall not apply to such witness, or other person where he has voted by open ballot.”

Section 128 RP Act,1951: “Maintenance of secrecy of voting. —

(1) Every officer, clerk, agent or other person who performs any duty in connection with the recording or counting of votes at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall not (except for some purpose authorized by or under any law) communicate to any person any information calculated to violate such secrecy. Provided that the provisions of this sub-section shall not apply to such officer, clerk, agent or other person who performs any such duty at an election to fill a seat or seats in the Council of States.

(2) Any person who contravenes the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to three months or with fine or with both.

1. Article 80(4) of the Indian constitution: “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.”

JUDGEMENT

RATIO DECIDENDI

• On the issue regarding removal of domicile,

The court state that, the amendment made in the RP Act,1951 through the RP (amendment) Act,40 of 2003, which came into force in 28^th august 2003, i.e., deletion of ‘domicile’ requirement for the candidates willing to get elected as representative of the state in Rajya Sabha. Court held that, in order to be elected to council of state, a person need not to be a resident of the state. It doesn’t violate the principle of federalism. The said amendment is not unconstitutional and it doesn’t affect the basic structure of Indian constitution. Court came to a conclusion that residence was never treated as an essential of the structure of the council of state and also the government of India act states that domicile is not the essential ingredient of the structure and composition of the upper house. The court also admitted that, “it is no part of federal principle that the representatives of state must belong to that state.”

• On the regarding ‘open ballot system’,

Further amendment made in RP Act, 1951, through RP (amendment) 40 of 2003 is alteration in section 59, 94 and 128 of RP Act,1951 by which ‘open ballot system’ was introduced. The court doesn’t found violation of fundamental right which is article 19(1)(a) of Indian constitution – freedom of expression. Voters are free to express their political opinions and preferences even if they going to vote through ‘open ballot system’. Court held that, voters of direct elections are ordinary citizens requires the safeguard of secrecy but the elected members of legislative assemblies are supposed to have public courage. The conduction of open ballot system shall be reducing the corruption and proxy.it helps to ensure free and fair elections.

 Hence, the petition was dismissed by the bench of 5 judges.

CONCLUSION & COMMENTS

In Kuldeep Nayar Vs Union Of India Case, The appellant is Kuldeep Nayar, respected Journalist in India. He filed a legal petition under article 32 of the Indian constitution. This petition challenges the changes made to the representation of people act 1951, Which is amendment 40 of 2003, which became effective from August 28^th 2003

This amendment had 2 major changes. First, it eliminated the necessity of the domicile in the state concerned for elections of the council of states. according to appellant it violates the principle of federalism. Second, the amendment altered section 59,94 and the section 128 of Indian constitution adopting a new method of conducting elections which is ‘open ballot system’ the petitioner argued that open ballet system infringes the principle of secrecy which is essential for fair elections. it violates the voters fundamental right i.e Freedom of expression under the article 19(1) (a) Of the Indian constitution. later the Supreme Court announces the judgment on the petition that removal of domicile requirement was not unconstitutional and it doesn’t violate article 84 of Indian constitution the court also found that the introduction of open ballot system in indirect Elections doesn’t violate any secrecy of voting as it doesn’t violate article 19(1) (a).

REFERENCES

1. The representation of people Act ,1951
2. The constitution of India
3. The representation of people (amendment) Act,40 of 2003
4. Kuldeep Nayar Vs Union of India AIR 2006 SC 3127