Supreme Court Upholds Amendments in Representation of the People Act, 1951: Domicile Requirement Removed and Open Ballot System Validated for Rajya Sabha Elections

In a landmark judgment, the Supreme Court of India dismisses petitions challenging the 2003 amendments that removed the domicile qualification for Rajya Sabha candidates and introduced open ballot voting, affirming Parliament’s legislative competence and emphasizing the evolving nature of federalism and electoral processes.

The Supreme Court of India, in a comprehensive and detailed judgment dated August 22, 2006, delivered by a five-judge Bench headed by Chief Justice Y.K. Sabharwal, dismissed the writ petitions filed by Kuldip Nayar and others challenging the constitutional validity of the amendments made to the Representation of the People Act, 1951 (RP Act) by the Representation of the People (Amendment) Act, 2003.

The key provisions under scrutiny were the removal of the domicile or residence qualification for candidates seeking election to the Council of States (Rajya Sabha), and the introduction of an open ballot system in the election process for the Rajya Sabha seats.

Background:

Originally, Section 3 of the RP Act, 1951 required that a person seeking to be elected to the Rajya Sabha from a State must be an elector in a Parliamentary constituency within that State, thereby implying a domicile or ordinary residence qualification. The 2003 amendment replaced this by requiring only that the person be an elector anywhere in India, removing the territorial nexus.

Further, the amendments to Sections 59, 94, and 128 introduced a proviso mandating that votes in Rajya Sabha elections be cast by open ballot, thus displacing the principle of secret ballot for these elections.

Petitioners’ Arguments:

The petitioners contended that the removal of the domicile requirement violated the principle of federalism, a basic structure of the Constitution, by severing the representative link between a Rajya Sabha member and the State they represent. They argued that domicile was intrinsic to the Council of States’ federal character.

Regarding the open ballot system, the petitioners asserted that secrecy of voting is essential to free and fair elections and is protected under Article 19(1)(a) as a facet of freedom of expression. They claimed the open ballot would expose voters to coercion and undermine democratic principles.

Respondents’ Submissions:

The Union of India and other respondents submitted that domicile is not a constitutional requirement but a matter of qualification prescribed by Parliament under Article 84(c). They contended that the amendment broadened the eligibility and was necessary to enable States to elect the best representatives irrespective of residence.

On open ballot, it was argued that the secrecy of ballot was not constitutionally mandated for Rajya Sabha elections, unlike for Presidential or Vice-Presidential elections. The change was necessitated by concerns of cross-voting, corruption, and money power, supported by the Ethics Committee of Parliament.

Court’s Analysis and Findings:

1. On Domicile Requirement:

 - The Court traced the legislative and constitutional history, noting that residence was never a constitutional requirement for Rajya Sabha membership. The Constitution left qualifications other than age and citizenship to be prescribed by Parliament.

 - Indian federalism is “quasi-federal,” with a strong Centre, and the territorial nexus is not sacrosanct.

 - The phrase “representatives of each State” in Article 80(4) relates to the manner of election, not a pre-existing status or residence qualification of the candidate.

 - The deletion of the domicile requirement from the RP Act does not violate the basic structure or federal character of the Constitution.

 - Parliament has exclusive legislative competence to define qualifications for Rajya Sabha membership, including the removal of residence criteria.

2. On Open Ballot System:

 - The right to vote is a statutory right, not an absolute fundamental or constitutional right, and can be regulated by law.

 - Secrecy of ballot is a vital principle but not an absolute one. It must sometimes yield to the larger public interest of ensuring purity and fairness in elections.

 - The open ballot system aims to curb cross-voting and corruption in indirect elections by Members of Legislative Assemblies, who owe allegiance to political parties.

 - The Election Commission’s views opposing open ballot do not bind Parliament’s legislative authority.

 - The Court emphasized that indirect elections (such as Rajya Sabha polls) differ from direct elections, and open ballot can be a rational and reasonable method consistent with free and fair elections.

 - Article 55(3) and 66(1) explicitly provide for secret ballot in Presidential and Vice-Presidential elections; their absence in Article 80(4) indicates that secret ballot is not constitutionally mandated for Rajya Sabha elections.

 - The open ballot does not violate the Tenth Schedule (anti-defection law), as voting contrary to party direction is regulated separately.

 - The Court held that the amendments are a reasonable restriction under Article 19(2) and do not infringe fundamental rights.

Conclusion:

The Supreme Court unanimously upheld the 2003 amendments to the Representation of the People Act, 1951. It ruled that Parliament acted within its legislative competence in removing the domicile requirement for Rajya Sabha candidates and in introducing the open ballot system for elections to the Council of States. The Court recognized the evolving nature of federalism and democratic governance in India and stressed that the broader objective of free and fair elections, including prevention of corruption and cross-voting, justifies these legislative changes.

The petitions challenging the amendments were accordingly dismissed, affirming the constitutional validity of the Representation of the People (Amendment) Act, 2003.

Statutory provisions

Representation of the People Act, 1950 Sections 16, 19, 20; Representation of the People Act, 1951 Sections 2(e), 3, 4, 5(c), 59, 94, 128; Constitution of India Articles 80(4), 81, 84, 102, 194, 246, 327; Representation of the People (Amendment) Act, 2003 (Act 40 of 2003)

Kuldip Nayar v. Union of India, (SC) : Law Finder Doc Id # 123619