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Kuldip Nayar vs Union of India

Citation – AIR 2006 SC 3127

Writ Petition – Appeal (civil) 217 of 2004

Date Of Judgment: 22/08/2006

Bench - Y.K. Sabharwal CJI & K.G. Balakrishnan & S.H.Kapadia & C.K.Thakker &



The case of Kuldip Nayar v. Union of India (2006) concerns modifications to the Representation of People's Act, 1951, which required voters to have a "domicile" in the State in question in order to be elected to the Council of States, but was later repealed by the stated amendment in 2003. With the implementation of the "open ballot method" for the election of Members of the Council of States, the issue of violation of the electors' basic rights was raised.


The need of "domicile" in the State Concerned for election to the Council of States was removed by the Amendment of Representative of People Act 20th03. Open Ballet System was also adopted by revisions to Sections 59, 94, and 128 of the Representative of People Act, 1951. The petitioner filed a writ petition under Article 32 of the Indian Constitution to contest the revisions.

The requirement of "domicile" in the State Concerned for getting elected to the Council of States was deleted in section 3 of the RP Act, which, according to the petitioner, is a violation of the principle of Federalism, which is a component of the "basic structure" of the Constitution of India. Also, the Open Ballot System violates the principle of proportionality, which is a component of the "basic structure" of the Constitution of India.


1. Whether the deletion of the necessity of "domicile" in the State Concerned for election to the Council of States in the Representative of People Act 2003 breaches the concept of Federalism, a fundamental structure of the Constitution?

2. Whether the Open Ballet System infringes on the notion of "secrecy," which is protected by Article 19(1)(a) of the Constitution as a basic right?


The petitioner argued that the revisions contradict the constitution's Basic Structure. However, it was argued on behalf of the Union of India that the fundamental structure theory does not apply to statutes.

The Court also ruled that the requirement that state legislators be citizens of that state is not a federal fundamental. As a result, if the Indian Parliament, in its wisdom, decided not to need a residency condition, it would not be in violation of a fundamental component of federalism. The court ruled that although residency is not a constitutional condition under Article 80(4), it is a qualification under Article 84. Parliament has the authority to provide qualifications from time to time based on the facts of the situation. There was no mention of a breach of the fundamental framework. The court also decided that the representative character should be read only when the individual is elected to the state council, not before.

Furthermore, ordinary legislation cannot be challenged on the basis of a breach of the Constitution's essential structure. The right to vote is only a legislative right that parliament may grant or take away, and it must always be subject to statutory limitations.

Under response to the second question, the court determined that members are chosen on party lines in a list system proportional representation system. Parliament might propose a "open ballot" to give reality to the notion of proportional representation. In such a circumstance, it could not be argued that “free and fair elections” would stand beaten by “open ballot”. Furthermore, the voter retains the right to choose whether or not to show his vote to an authorized agent of his party, and there is no mention in the law that "secret ballot" is the only system.

Respondents' Point of View - The necessity of residence was never stated in the Constitution. It was never considered a necessary component of the Council of States' organization. The legislative history of constitutional enactments such as the GI Act demonstrates that residency or domicile is not a necessary component of the Upper House's structure and makeup.


The members of a Rajya Sabha are chosen by the elected members of the State Legislative Assembly using the proportional representation method and a single transferable vote, as stipulated in Article 80(1)(b) and 80(2) of the Constitution (4). This mode of election guarantees that only members of the Rajya Sabha who are aware of the requirements and attitudes of the state in question are elected.

It also emphasizes the notion that the Rajya Sabha represents the whole state. The essence of Federalism under the Indian Constitution, on the other hand, is not res integra. The five-judge panel, in rejecting the petitioners' arguments, stated that the idea of federalism remains unaffected as long as the state has the right to be represented in the Council of States by its elected representatives, who are the residents of the county.

The Court also referred to the legislative history of constitutional enactments such as the Government of India Act, 1935, and stated that residence or domicile is not an essential component of the structure and composition of the Upper House, and that residence has always been treated as a matter of qualification.

The need that members of the Upper House of Parliament live in the United States is not a fundamental provision of the Federal Constitution. Because a Rajya Sabha member does not "ordinarily dwell" in the state from whence he is chosen, the Indian Constitution remains federal. The Bench also upheld the amendment in the Representation of People’s Act 1951 that introduced an open ballot system holding that voting for the elections of Council of States cannot be compared with general elections as in the general election there is no party affiliation and therefore the choice is entirely with the voter which is not the case with the elections of the Council of States. As elected members of legislative assemblies, the electors for the Upper House have specific party connections.

There must be confidentiality in direct elections, however open ballot may be incorporated as a concept under the electoral system of voting in indirect elections when members are selected by indirect ways, such as by parliament, legislative assembly, or executive. In People's Union for Civil Liberties & Anr. v. Union of India & Anr. [(2003) 4 SCC 399], the Supreme Court held that the right to vote includes the constitutional right to freedom of speech. However, this cannot be true of the right to run for office, since it is a right governed by legislation, and building on this point, the Bench in this case stated that the mode of voting in elections to the Council of States may be clearly controlled by statute.

Although the Constitution does not require secret ballot voting for elections to the Council of States, it cannot be stated that secret ballot voting in all elections is a constitutional right. The right to vote is not being taken away by this change; instead, the elector must only explain how he cast his vote to a representative of his party, since the Upper House elections are indirect, making it necessary for election purity.

The Representation of the People (Amendment) Act, 2003 (40 of 2003) amended Sections 3, 59, 94, and 128 of the Representation of the People Act, 1951 in exercise of the powers conferred on Parliament by Article 246 read with Articles 84 and 327, and Entry 72 of the Union List of the Seventh Schedule to the Constitution.

As a result, it cannot be argued to be in violation of Part III of the Constitution's Fundamental Rights. Parliament had the legislative authority to adopt the amending Act, the challenged statute was not declared unconstitutional. The Court stated that the purpose of the amendment was to prevent cross-voting, eliminate corruption, and maintain the democratic setup's integrity, and thus can be justified by the State under Article 19(2) of the Constitution as a reasonable restriction on freedom of expression under Article 19(1). (a).


Federalism's implementation cannot be the same in every situation; variance occurs based on the homogeneity or heterogeneity of its parts. In the context of India, it is undeniable that the cultural diversity is immense, and that the circumstances differ from place to place in terms of geography, culture, and history.

As a result, in such a diverse society, the "construction of federalism often reflects differing levels of regional identity," and specific regional groups may be viewed as more important, while a few may be left behind. The primary goal of a representative is to raise awareness of regional issues, assist in the acquisition of resources, and help shape appropriate policies. In such a society, it is essential that the representative is from the region, as the underlying heterogeneity necessitates a representative who understands the situation rather than an outsider who may not be aware of regional differences.

Furthermore, the concept of a state is not just geographical, but also inclusive of its people. According to Article 1 of the constitution, India will be a Union of States, and it is important to remember that the phrase "Representatives of each State" (Article 80(4)) only refers to those who live in the state, and therefore only they may represent the state in the Council of States. Owing to the amendment in issue, there are several things which must be looked at so as to grasp the tremendous danger that it presents to the federal structure: - Individuals who are unable to win a Lok Sabha seat or who may be unable to win a Rajya Sabha seat from their own state have used this modification to get access to the Rajya Sabha, regardless of the principles of federal representation.

Looking at the alternatives, it's possible that in a certain circumstance, all of the delegates from various states will be assigned to a single state, putting the values of diversity and state representation in the Council of States at risk.

Major Sections and Acts Cited in The Case:


• Representation of People Act, 1950-Section 13D,14,15,16,17,18,19,20,21,22,23,24,30;

• Representation of People (Amendment) Act, 1951-Section 2, 3, 4, 5, 6, 16, 29A, 29B, 29C, 59, 62, 94, 95, 100, 125, 128, 171

• Constitution of India- Article 5, 6, 8, 9, 13, 14, 16, 19, 31B, 32, 51, 55, 66, 68A, 79, 80(4), 81, 82, 83, 84, 90, 91, 92, 93, 101, 105, 132, 143, 152, 163, 164, 168, 170, 173, 190, 194(1), 194(2), 213, 226, 227, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 258(1), 290, 302, 312, 324, 325, 326, 327, 328, 329, 330, 355, 356, 356(1), 357, 368, 368(2), 379

Acts -

▪ Representation of the People Act, 1951

▪ Representation of People (Amendment) Act, 1951

▪ Army Act, 1950

▪ Government of India Act, 1915

▪ Administrative Tribunal Act, 1985

▪ Mines and Minerals Act, 1957

This article is written by Mridula Pandey of Symbiosis Law School Pune.

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