Constitution of India

— Arts. 80 and 84 — Federalism and bicameralism — Essence of structure of — Qualification for membership of Rajya Sabha — Removal of requirement of residence or domicile in the electing State as a qualification for election to Rajya Sabha — Validity of — If violated basic feature of federalism — Held, representatives of the States in Rajya Sabha need not necessarily belong to the State concerned — Residence, in the matter of qualifications, becomes a constitutional requirement only if it is expressly so stated in the Constitution — Residence is not the essence of the structure of Upper House — Hence it is not a prerequisite of federalism or an essential basic feature of all federal constitutions — Hence if Parliament has chosen not to require a residential qualification, it does not violate the basic feature of federalism, (2006) 7 SCC 1-A

Constitution of India

— Arts. 79 to 81 — Constitution of Parliament — Bicameralism — Meaning and scope — Need for and role of Upper House/Second Chamber of Parliament (Rajya Sabha) — Earlier view and contemporary view of role of and need for an Upper House, discussed — Waning of parochial/regional considerations — Independence of Rajya Sabha MPs from dictate of State they represent in matter of voting — Held, growth of bicameralism in parliamentary forms has been functionally associated with need for effective federal structures and a nexus between role of Upper House and better Centre-State coordination and protection of interests of the constituent units of the Union — However, the contemporary view is that Upper Houses are losing their intended characteristics of effectively representing the interests of the States and are increasingly becoming "national" institutions — Rajya Sabha does not act as a champion of local interests — Reasons therefor, discussed — Rajya Sabha is a forum to which experienced public figures get access without going through din and bustle of a general election — It acts as a revising chamber over Lok Sabha and helps in improving Bills passed by Lok Sabha — Position in other federal countries (US, Canada, Australia), compared and contrasted — Rajya Sabha MPs vote not on dictate of State concerned, but according to their own views and party affiliation, (2006) 7 SCC 1-B

Constitution of India

— Arts. 84, 102, 327, 246 and Sch. VII List I Entry 72 — Qualification for membership of Parliament — Removal of domiciliary or residence requirement in State concerned for membership of Rajya Sabha — Power of Parliament in respect of — Nature and scope of — Held, from Arts. 84 and 102 it is clear that Constitution has no requirement that person chosen to represent a State in Rajya Sabha must necessarily be a voter or "ordinarily resident" in that State itself — Constitution after prescribing certain qualifications and disqualifications, has left it to Parliament to provide "such other qualifications" as it may deem necessary or proper — Apart from the restrictions in Arts. 84(a) & (b), Constitution does not put any restriction on legislative powers of Parliament in this regard — Art. 84(c) creates a power and not a duty — If Constitution had intended that "representatives" of the States must be residents thereof or such like, such provision would have been expressly made therein as has been done for age and citizenship, (2006) 7 SCC 1-C

Constitution of India

— Arts. 327, 328, 246 and Sch. VII List I Entry 72 — Provisions for elections to legislatures — Power of Parliament to make — Provisions to free electoral system from all known vices — Availability of — Held, Parliament has the necessary legislative competence therefor, (2006) 7 SCC 1-D

Constitution of India

— Art. 80 — Composition of Rajya Sabha — Words "representatives of the States" or "representatives of each State" — Meaning and scope of — Domiciliary link or nexus between Rajya Sabha MP and State he is elected from, held, not implicit in the said words and neither can it be read in — Said words connote persons who are elected by the State Assembly to represent the State concerned in Rajya Sabha — A person need not be a representative of the State beforehand — It is only on being elected to represent the State in the manner prescribed therefor that he becomes a "representative of the State" — Said words do not in any manner connote that the representative must be also an elector or voter registered in the State itself (and hence be "ordinarily resident" in such State) — Art. 80(4) deals with the manner of election and nothing more — Hence words "representative of each State" therein only refer to members of Rajya Sabha and do not import any further concept or requirement of residence in the State being represented — Nexus between candidate and the State from which he gets elected to Rajya Sabha is provided by the perception and vote of the elected MLAs of the State who consider such candidate as best qualified to further the interests of the State in Parliament — These considerations undoubtedly are certainly more weighty than the transitory or often illusory concept of "residence" — It is only the field of consideration before State Assembly that has been enlarged by the impugned amendment — Ultimate choice and decision remains that of the State Assembly — Even if an "outsider" is elected, character of Rajya Sabha will not be consequently altered — Hence, impugned amendment is valid and cannot be faulted, (2006) 7 SCC 1-E

Constitution of India

— Art. 84 — Qualification for membership of Parliament — Exclusivity of provisions of Art. 84 in respect of, stressed, (2006) 7 SCC 1-F

Election

Representation of the People Act, 1950

— S. 20 — Words "ordinarily resident" in — Meaning and scope — Malleability and contingent nature of concept of, (2006) 7 SCC 1-G

Constitutional Interpretation

Basic Rules

— Literal or strict construction — Primacy of rule of — Held, rule of literal construction is the safe rule unless the language is contradictory, ambiguous, or leads to absurd results, (2006) 7 SCC 1-H

Constitutional Interpretation

Internal aids

— Marginal note — Aid in interpreting a provision — "Qualifications" dealt with exclusively in Art. 84 made clear by the marginal note, (2006) 7 SCC 1-I

Constitution of India

— Arts. 80 and Sch. IV — Composition of Rajya Sabha — Words "representatives of each State" in Art. 80(4) — Significance and purport of word "each" — Held, employment of "each" preceding "State", in the context of representation in the Council of States, is meant only to underscore the fact that Legislative Assembly of each State is intended to be a separate electoral college for returning a member to fill in the seat allocated to the particular State as specified in Sch. IV — Nothing more and nothing less is implied thereby, (2006) 7 SCC 1-J

Election

Representation of the People Act, 1950

— Ss. 20, 13-D, 14, 16, 17, 18 and 19 — Requirement of "ordinary residence" — Relevance of — Held, the same is relevant for preparation of electoral rolls and nothing further, (2006) 7 SCC 1-K

Election

Representation of the People Act, 1950

— Ss. 19, 20 and 16 — Registration of person as elector in a constituency — Essential requirement for — Cardinal necessity for person to be "ordinarily resident" in the constituency, (2006) 7 SCC 1-L

Election

Representation of the People Act, 1950

— Ss. 20, 19 and 16 — Words "ordinarily resident" — Vagueness in concept of as defined in S. 20 — Lack of preciseness in definition, discussed — Need for provision of precise definition — Held, said imprecision and vagueness currently obtaining does not mean that it is not possible to give a precise definition to "ordinarily resident" for purposes of electoral law — This does not also mean that doing away with the domiciliary requirement can always be the answer since it would always remain obligation of the legislature and Central Government to define precisely as to what is meant by "ordinarily resident" since that would remain the sine qua non for registration of a person as an elector, (2006) 7 SCC 1-M

Constitution of India

— Arts. 32, 226 and 73 & 107 — Meaning of requirement in statute being found difficult to render precise — Amendment of statute to remove said requirement therefor — Reasons given by Central Government for introducing such amendment — Scope of judicial review — Held, what is open to court is to examine whether reasons given by Government are bona fide, in view of meaning of the expression concerned in the statute or in face of the dictionary meaning by which the expression can be generally understood, (2006) 7 SCC 1-N

Election

Representation of the People Act, 1950

— Ss. 19, 16, 20 and 2(e) — Registration as elector in a constituency — Requirements for, summarised, (2006) 7 SCC 1-O

Election

Candidature

— Qualifications for — Requirement of "ordinary residence" in a constituency so as to be registered as elector therein — Applicability — Held, there is no requirement in law that the person elected must possess same qualifications as the elector possesses — Relevance of scheme of Art. 171 of Constitution in this regard, discussed, (2006) 7 SCC 1-P

Constitution of India

— Arts. 84 and 80 — Qualification for membership of Rajya Sabha — Qualification for person to be a "representative of the State" — Need for person seeking election to have qualifications of electors therefor (elected MLAs of State concerned) — Held, there is no such requirement, (2006) 7 SCC 1-Q

Constitution of India

— Arts. 173 and 171 — Qualification for membership of Legislative Council — Need for person seeking election to have qualifications that members of electoral college therefor have — Held, there is no such need, (2006) 7 SCC 1-R

Election

Representation of the People Act, 1950

— S. 20 — Multiple residences — Application of concept of "ordinary residence" in case of — Held, multiple residences do not present any problem since requirement of ordinary residence does not apply to each of the several residences of a person, (2006) 7 SCC 1-S

Election

Representation of the People Act, 1950

— S. 3 (as amended by Act 40 of 2003) — Whether amendment in question makes S. 3 nugatory — Held, it does not since NRIs would still be excluded by S. 3, (2006) 7 SCC 1-T

Constitution of India

— Arts. 80, 84, 327, 246 and Sch. VII List I Entry 72 — Qualification for membership of Upper House/Second Chamber in bicameral legislature — Requirement of residence in constituent unit/State being represented at union/Central level — If a constitutional requirement or essential ingredient of structure of Upper House/Second Chamber historically — Legislative competence of Parliament in this regard — Historical development in Indian and foreign contexts, traced and discussed extensively — Held, in the context of the Indian Constitution, residence/domicile is an incident of federalism which is capable of being regulated by Parliament as a qualification which is the subject-matter of Article 84 — This is borne out by the legislative history, (2006) 7 SCC 1-U

Constitutional Interpretation

External aids

— Historical background — When relevant, (2006) 7 SCC 1-V

Constitution of India

— Arts. 245, 13 and 368 — Validity of legislation — Tests for, reiterated — Ordinary legislation if to answer to test of "basic features" of the Constitution — Held, doctrine of "basic features" in context of the Constitution does not apply to ordinary legislation — It applies only to constitutional amendments, (2006) 7 SCC 1-W

Election

Representation of the People Act, 1951

— S. 3 (as amended by Act 40 of 2003) — Qualification for membership of Rajya Sabha — Removal of requirement of residence or domicile in the electing State as qualification of election to Rajya Sabha — Validity of — If violated basic features of Constitution — Held, "residence" is not the constitutional requirement for election to Council of States — Therefore question of violation of basic structure does not arise, (2006) 7 SCC 1-X

Constitution of India

— Arts. 80 and 84 — Composition of Rajya Sabha — Interpretation of words "representatives of the States" and "representatives of each State" in Art. 80 — If needed to be in conformity with basic structure of Constitution, (2006) 7 SCC 1-Y

Constitution of India

— Arts. 84, 80, 327, 246 and Sch. VII List I Entry 72 — Qualification for membership of Rajya Sabha — Effect of integrated scheme of elections in Constitution and RP Act, 1951 — Residence or domicile in electing State as a qualification — Nature of — Statutory or constitutional — Held, there is no express provision in the Constitution itself requiring residence or domicile in the electing State as a qualification — The factum of the integrated scheme did not confer constitutional status to requirement of residence or domicile contained in S. 3, RP, 1951 prior to its amendment by Act 40 of 2003, (2006) 7 SCC 1-YA

Constitution of India

— Arts. 84, 80, 327, 379, 246 and Sch. VII List I Entry 72 — Qualification for membership of Rajya Sabha — Effect of RP Acts having been enacted by Constituent Assembly acting as the Provisional Parliament — If amounted to a contemporanea expositio of Constitution — Residence or domicile in electing State as a qualification — Nature of — Statutory or constitutional — Contention that enactment of RP Acts, containing such residential or domiciliary requirement in S. 3, RP Act, 1951 (as enacted), soon after enactment of Constitution by Constituent Assembly acting as the Provisional Parliament, amounted to a contemporanea expositio of the integrated scheme for elections contained in Constitution and RP Acts — Sustainability — Held, fallacy of this approach lies in fact that legislation by the Provisional Parliament did not produce a constitutional rule — It did not have the sanctity or normative value of constitutional law, (2006) 7 SCC 1-YB

Constitution of India

— Arts. 327, 328, 379, 246 and Sch. VII List I Entry 72 — Scheme for elections — Relationship of scheme in Constitution and RP Acts — Effect of such relationship on provisions contained in RP Acts — Effect of RP Acts having been enacted by Constituent Assembly acting as the Provisional Parliament — Held, the two schemes form an integrated scheme — However, that does not imply that purely statutory provisions of RP Acts, power of enaction of which has been conferred on Parliament by Constitution, acquire constitutional status thereby — Nor did enactment of the RP Acts by Constituent Assembly acting as the Provisional Parliament confer a constitutional status on provisions of RP Acts, (2006) 7 SCC 1-YC

Constitution of India

— Arts. 379, 245, 246 and 368 — Effect of Art. 379 — Statutes enacted by Constituent Assembly acting as the Provisional Parliament — Status of — Difference between constitutional power and derived power — Held, such statutes have the usual statutory status and did not acquire constitutional status merely because the Provisional Parliament also happened to have been the Constituent Assembly, (2006) 7 SCC 1-YD

Constitutional Interpretation

Subsidiary rules

— Contemporanea expositio — When applicable — Held, only in case it is a constitutional rule that is being interpreted, and then only in case the Constitution has used an ambiguous expression, (2006) 7 SCC 1-YE

Constitution of India

— Arts. 84, 80, 243-C and 243-R — Qualification for membership of Rajya Sabha — Residence or domicile in electing State as a qualification of — Membership of panchayats and municipalities by Rajya Sabha MPs — Requirement of registration as electors, hence "ordinary residence" in panchayat and municipal areas for such membership in terms of Arts. 243-C and 243-R, respectively — Effect of — Held, said residential requirement in Arts. 243-C and 243-R does not imply that a qualification of residence or domicile in the State concerned is a constitutional requirement for membership of Rajya Sabha — Reasons therefor, explained, (2006) 7 SCC 1-YF

Constitution of India

— Arts. 243-C and 243-R — Panchayats and municipalities — Membership by Rajya Sabha MPs — Requirement of registration as electors, hence "ordinary residence" in panchayat and municipal areas for such membership — Scheme of, and rationale behind, explained, (2006) 7 SCC 1-YG

Constitution of India

— Arts. 84, 80, 4 and 368 and Sch. IV — Membership of Rajya Sabha — Expressions "representatives of the States" in Art. 80, "representation of States" in Art. 368(2) proviso (d) and "representation in Parliament" in Art. 4 — Relative scope — Change in statutory qualifications for persons to qualify as "representatives of the States" if falls under Art. 368(2) proviso (d), hence requiring a constitutional amendment — Held, the expressions in Art. 80 and Art. 368(2) proviso (d) are not synonymous nor employed in the same sense — Purport of both, explained — Effect of Art. 4 — Amendment made by the impugned Act relates only to residential qualification of the "representatives" and is not concerned with the "representation of the States" in Parliament — States still elect their representatives to Rajya Sabha through their respective elected MLAs as provided for in Art. 80(4) in the Constitution — Hence, there was no need for a constitutional amendment — Instance of change in this context which would require a constitutional amendment, posited, (2006) 7 SCC 1-YH

Constitution of India

— Arts. 368(2) proviso (d), 80 and Sch. IV — Constitutional amendments that can affect "representation of the States" — Instances given, (2006) 7 SCC 1-YI

Constitution of India

— Arts. 73, 80, 84 and 327 — Exercise of executive power — Views of National Commission on Working of Constitution — Nature of — If binding — Amendment of RP Act, 1951 removing requirement of residence or domicile in electing State for membership of Rajya Sabha — Views of National Commission on Working of Constitution, not followed by Government in bringing about amendment — Propriety — Held, said views were not binding, (2006) 7 SCC 1-YJ

Constitution of India

— Arts. 32, 73, 80, 84 and 327 — Practice and procedure re Art. 32 — Counter-affidavit of Government in writ petition — Need for consistency of, with stand of Government in other public documents — Amendment of RP Act, 1951 removing requirement of residence or domicile in electing State for membership of Rajya Sabha — Counter-affidavit of Union of India before Supreme Court containing reasons for amendment different from those contained in Statement of Objects and Reasons of amendment — Permissibility — Held, Statement of Objects and Reasons of a proposed legislation is not the compendium of all possible reasons or justification — In any case, there is no contradiction in the stand taken by the Union of India before Supreme Court, (2006) 7 SCC 1-YK

Constitution of India

— Arts. 79 to 81 — Lok Sabha and Rajya Sabha — Nature, functioning, differences between and relative roles, discussed — Parity brought about in matter of qualification to the extent concerning residence of potential candidates — Effect of — Held, role of Rajya Sabha is somewhat secondary to that of Lok Sabha, barring a few powers in arena of Centre-State relationship — Further held, bringing about of parity in said matter of qualification does not make one House a duplicate of the other — Their roles, functions, powers or prerogatives, especially in matter of legislation, remain unchanged, (2006) 7 SCC 1-YL

Constitution of India

— Arts. 80, 81 and Sch. IV — Constitution of Rajya Sabha and Lok Sabha — Nature and mode of representation in, extensively discussed — Equality of representation of States in US Senate and weighted proportional representation in Rajya Sabha, compared, and relative merits of and rationales therefor, discussed, (2006) 7 SCC 1-YM

Constitution of India

— Arts. 80, 84 and Sch. IV — Rajya Sabha MPs — Representation of the States by — Effectiveness of — Weighted proportional representation of States in Rajya Sabha — Effect of — Held, said factor does not affect the fact that Rajya Sabha MPs are indeed representatives of the States, (2006) 7 SCC 1-YN

Constitution of India

— Arts. 79 to 81 and 84 — Membership of Parliament — Mode of attainment of and nomenclature used to describe members of either House of Parliament — Use of word "member" to describe Lok Sabha MPs and "representatives" to describe Rajya Sabha MPs — Effect — Held, the same has no effect and whether nominated, elected directly or indirectly, referred to as "members" or as "representatives" members of both Houses are Members of Parliament — There is no distinction between the expressions "members" and "representatives", (2006) 7 SCC 1-YO

Constitution of India

— Art. 80 — Nominated and elected Rajya Sabha MPs — Difference in status and powers of, if any, (2006) 7 SCC 1-YP

Constitution of India

— Arts. 79 and 168 — Composition of Parliament and State Legislatures — Reiterated, include President and Governor, respectively, (2006) 7 SCC 1-YQ

Constitution of India

— Arts. 3, 249 to 253, 258, 356, 312, Pts. IX & IX-A and Sch. VII Lists II & III — Nature of federalism under Indian Constitution — Concept of "strict federalism", explained and its rejection under Indian Constitution, restated — Provisions in Constitution incorporating broad federal features, and provisions in Constitution showing strong unitary/Central bias therein, discussed, (2006) 7 SCC 1-YR

Constitution of India

— Arts. 251 and 249 — Effect of — Held, the same permit the Rajya Sabha to encroach upon the specified legislative competence of a State Legislature by declaring a matter to be of national importance, (2006) 7 SCC 1-YS

Election

Conduct of Election

— Secrecy of ballot vis-à-vis conduct of free and fair elections and purity of elections — Relative importance of — Former when to yield to latter — Held, out of the two competing principles, the purity of election principle must have its way — If secrecy becomes a source for corruption then sunlight and transparency have the capacity to remove it — Impugned amendment replacing secret ballot with open ballot, to remove evil of cross-voting for consideration in Rajya Sabha elections, cannot therefore be faulted, (2006) 7 SCC 1-ZA

Election

Conduct of Election

— Secrecy of voting — Scope — When can be breached — Held, voter if he chooses, can give up his privilege and disclose whom he has voted for — Such an event can also happen if there is fraud, forgery or other illegal act and disclosure subserves purpose of administration of justice, (2006) 7 SCC 1-ZB

Constitution of India

— Arts. 80, 55 & 66, 327, 328 and Sch. VII List I Entry 72 — Rajya Sabha elections — Removal of secret ballot and introduction of open ballot system by amendment of relevant provisions of RP Act, 1951 — Validity of — Held, there is no requirement of Rajya Sabha elections to be by secret ballot in Art. 80(4) — To read such a requirement into Art. 80(4) would be to read in words that are not present — Where Constitution thought it fit do so, it has itself provided for elections by secret ballot, as in case of Arts. 55(3) and 66(1) — Hence it was permissible for Parliament to choose between system of secret ballot or open ballot — There is hence is no constitutional infirmity in providing open ballot system for Rajya Sabha elections, (2006) 7 SCC 1-ZC

Constitution of India

— Arts. 80, 327, 328 and Sch. VII List I Entry 72 — Right to vote and elect Rajya Sabha MPs — Nature and scope — Regulation of Rajya Sabha elections — Legislative competence — Scope — Held, right to vote and elect Rajya Sabha MPs is not a constitutional right — Art. 80(4) merely deals with manner of election of Rajya Sabha MPs — Further, manner of voting in Rajya Sabha elections can definitely be regulated by statute — Hence replacement of secret ballot by open ballot in Rajya Sabha elections, by law made by Parliament cannot be faulted, (2006) 7 SCC 1-ZD

Election

Right to vote

— Scope — Secret ballot if implied — Constitutional position — Held, right to vote does not include right to vote in secrecy as an implied term — Where Constitution thought it fit to do so, it has itself provided for elections by secret ballot — Position obtaining in respect of Art. 80 compared with that in Arts. 55 and 66 — For secret ballot to be the norm, it must be expressly so provided, (2006) 7 SCC 1-ZE

Election

Right to vote

— Nature and scope — Held, right to vote, fundamental though it is to democracy, is neither a fundamental right nor a common law right, but pure and simple, a statutory right — PUCL case, (2003) 4 SCC 399, clarified in this context — Right to vote has to yield to the attainment of free and fair elections — Right to vote in free and fair elections hence is always in terms of an electoral system prescribed by national legislation, (2006) 7 SCC 1-ZF

Election

Candidature

— Right to stand for election — Nature and scope — Held, right to be elected is pure and simple a statutory right that can be created and taken away by Parliament — Therefore it must always be subject to statutory limitations -, (2006) 7 SCC 1-ZG

Constitutional Interpretation

Basic rules

— Literal construction — Adherence to — Reading in of words not contained in constitutional provisions — Impermissibility, (2006) 7 SCC 1-ZH

Constitutional Interpretation

Basic rules

— Contextual construction — Art. 80(4) silent on secrecy of voting in Rajya Sabha elections, while Arts. 55(3) and 66(1) explicity providing for the same in case of election of President and Vice-President — Implication — Held, the same implies that in the latter two cases Constitution intended to provide for secret ballot and not in the third, (2006) 7 SCC 1-ZI

Constitution of India

— Arts. 80, 81, 170, 327, 328 and Sch. VII List I Entry 72 — Rajya Sabha elections — Voting by open ballot — Permissibility of — Position contrasted with that for general elections to Lok Sabha and State Legislatures — Held, in a general election the electors have to vote in a secret manner without fear that their votes would be disclosed to anyone or would result in victimisation — There is no party affiliation and hence the choice is entirely with the voter — This is not the case in Rajya Sabha elections as the electors are elected MLAs who in turn have party affiliations — Importance of political parties, adherence to party discipline and legitimacy of measures to prevent cross-voting for consideration, emphasised, (2006) 7 SCC 1-ZJ

Election

Conduct of Election

— Secret ballot — Forms of election in which constitutional right — Constituency based (direct elections) and (indirect) list system of proportional representation — Positions in, compared — Held, in constituency-based representation, secrecy is the basis whereas in case of proportional representation in a representative democracy the basis can be open ballot — The latter would not violate the concept of "free and fair elections" — Reasons for, discussed, (2006) 7 SCC 1-ZK

Election

Conduct of Election

— Secret ballot — Forms of election in which constitutional right — Direct and indirect elections — Positions in, compared — Held, in case of direct elections, secret voting is insisted upon whereas in indirect elections open ballot can be introduced, (2006) 7 SCC 1-ZL

Election

Electoral systems

— Generally — Forms of — Constituency based direct elections and indirect list system of proportional representation — Compared and contrasted, (2006) 7 SCC 1-ZM

Election

Right to vote

— Effect of electoral form — Held, nature of elections, namely, direct or indirect, regulates concept of right to vote, (2006) 7 SCC 1-ZN

Constitutional Law

Basic Structure of Constitution

— Elements of — Held, parliamentary democracy and multi-party system are an inherent part of the basic structure of the Constitution — Hence an amendment to restore popular faith in parliamentary democracy and in multi-party system cannot be faulted, (2006) 7 SCC 1-ZO

Constitution of India

— Arts. 327, 328 and Sch. VII List I Entry 72 — Indirect elections — Manner of voting — Features that may be introduced — Held, protection of party discipline can be introduced as an essential feature of purity of elections in case of indirect elections, (2006) 7 SCC 1-ZP

Constitution of India

— Arts. 327, 328 and Sch. VII List I Entry 72 — Duty of Parliament — Conduct of elections — Procedure to be adopted — Held, procedure by which an election has to be held should further object of free and fair election — It is the duty of Parliament to take cognizance of electoral misbehaviour and misconduct and legislate remedial measures therefor, (2006) 7 SCC 1-ZQ

Constitution of India

— Arts. 327, 328, 80 and Sch. VII List I Entry 72 — Rajya Sabha elections — Removal of secret ballot and introduction of open ballot system by amendment of relevant provisions of RP Act, 1951 — Legislative competence — Held, Parliament has legislative competence to enact the amending Act, (2006) 7 SCC 1-ZR

Constitution of India

— Art. 245 — Validity of statute — Other grounds on which may be challenged — Wisdom of legislation — Held, a challenge to legislation cannot be decided on the basis of there being another view which may be more reasonable or acceptable, (2006) 7 SCC 1-ZS

Election

Representation of the People Act, 1951

— Ss. 59, 94 and 128 (as amended by Act 40 of 2003) — Cumulative effect of, held, is that Rajya Sabha elections are now to be held by "open ballot" — Working of scheme of "open ballot" r/w R. 39-AA, Conduct of Elections Rules, 1961, explained in detail — Held, by said amendments the right to vote in Rajya Sabha elections is not taken away — Each elected MLA of State concerned is fully entitled to vote in Rajya Sabha elections — Only change is every MLA belonging to a party has to disclose the way he has cast the vote to the authorised representative of his party ("authorised agent"), and to no one else — Only such MLAs as are members of a political party are bound to disclose the above and not all MLAs across the board — Prerogative remains with the voting MLA to choose as to whether or not to show his vote — Voting MLA may refuse to show his vote to the authorised agent, but in such an event he forfeits his right to vote — There is therefore a compulsion on a voting party MLA to show his vote — However, if a party MLA casts a vote in favour of any person he thinks appropriate and shows his vote to the authorised agent, the Rules do not contemplate cancellation of such a vote — Further, an elected MLA would not face any disqualification from the membership of the House for voting in a particular manner — He may at the most attract action from the political party to which he belongs, (2006) 7 SCC 1-ZT

Constitution of India

— Arts. 19(1)(a) & (2), 80, 118, 89 and 93 — Rajya Sabha elections — Removal of secret ballot and introduction of open ballot system — If has affected freedom of expression of voting MLAs — Held, such is not the case since, firstly, it is only if a voting MLA refuses to show his vote to the authorised representative of his party that he forfeits his right to vote — However, if he casts a vote in favour of any person he thinks appropriate and shows his vote to the authorised agent, the Rules do not contemplate cancellation of such a vote — Secondly, an elected MLA would not face any disqualification from the membership of the House for voting in a particular manner — He may at the most attract action from the political party to which he belongs — Further, since impugned amendment was brought to prevent cross-voting and wipe out evils of corruption and maintain integrity of democratic set-up, it can also be justified as a reasonable restriction under Art. 19(2) — Lastly, every vote on a motion inside the House is by open ballot, and so is election of Speaker, Deputy Speaker of Lok Sabha and Deputy Chairperson of Rajya Sabha — Hence impugned amendment cannot be faulted, (2006) 7 SCC 1-ZU

Constitution of India

— Art. 80 and Sch. X — Election to Rajya Sabha by open ballot — Voting by party MLA against party whip in — Disqualification under Sch. X — Held, the same does not lead to disqualification under Sch. X — At the most it may attract action from the political party to which he belongs — Kihoto Hollohan case, 1992 Supp (2) SCC 651, applied — Moreover, being a member of the political party on whose ticket he was elected as an MLA, he is generally expected to follow the directions of the party, (2006) 7 SCC 1-ZV

Constitution of India

— Arts. 194 and 80 — Rajya Sabha elections by open ballot — Voting by elected MLAs in — Privilege of freedom of expression without fear of legal consequences under Art. 194(2) — Availability of — Held, Rajya Sabha elections under Article 80 are not proceedings of "House of the Legislature of the State" under Art. 194 — Not the entire Legislative Assembly becomes electoral college under Art. 80, but only specified category of MLAs — While voting in Rajya Sabha elections such MLAs do not discharge functions assigned under Constitution to Legislative Assembly — Their participation in the election is only on account of their ex-officio capacity of voters for the election — Hence, act of casting votes by them, which also need not occur with all of them present together or at the same time, is merely exercise of franchise and not proceedings of the legislature — Hence said privilege is not available, (2006) 7 SCC 1-ZW

International Law

— International conventions — Actionability in municipal law — International conventions regarding election of governments by secret ballot — Applicability — Held, international covenants and declarations adopted by United Nations have to be respected by all signatory States and the meaning given to them has to be such as would help in effective implementation of the rights declared therein — Requirement of Art. 21 of Universal Declaration of Human Rights is satisfied not necessarily by secret ballot but even "by equivalent free voting procedures" — In any case, in present case the law on the subject as settled in India is clear enough as to render it not necessary to look elsewhere to deal with issues raised — Further, in case of conflict, municipal laws have to prevail, (2006) 7 SCC 1-ZX

Constitutional Law

Basic Structure of Constitution

— Elements of — Democracy and free and fair elections — Held, democracy is a basic feature of Constitution, one that is not amenable to power of amendment of Parliament under the Constitution — It has also been the consistent view of Supreme Court that the edifice of democracy in this country rests on a system of free and fair elections, (2006) 7 SCC 1-ZY

Constitution of India

— Preamble — Nature of — Held, is a part of the Constitution, (2006) 7 SCC 1-ZZ

Constitution of India

— Arts. 324, 327 and 328 — Power of Election Commission vis-à-vis Parliament — Held, when Parliament or any State Legislature has made valid law relating to or in connection with elections, Election Commission has to act in conformity with, not in violation of, such provisions, (2006) 7 SCC 1-ZZ