Kuldip Nayar Vs. Union of India & Ors
[2006] Insc 512 (22 August 2006)
Cji Y.K. Sabharwal,K.G. Balakrishnan,S.H.
Kapadia,C.K. Thakker P.K. Balasubramanyan
[With Writ Petition (C) Nos.262, 266 and 305 of
2004) Y.K. Sabharwal, CJI, Background By this writ petition under Article 32 of
the Constitution of India, petitioner seeks to challenge amendments made in the
Representation of People Act, 1951 (for short, 'the RP Act', 1951') through
Representation of People (Amendment) Act 40 of 2003 which came into force from
28th August, 2003. By the said Amendment Act 2003, the requirement of
"domicile" in the State Concerned for getting elected to the Council
of States is deleted which according to the petitioner violates the principle
of Federalism, a basic structure of the Constitution.
In the writ petition, there is a further
challenge to the amendments in Sections 59, 94 and 128 of the RP Act, 1951 by
which Open Ballet System is introduced which, according to the petitioner,
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.
Text of the Statute before the Amending Act 40
of 2003 From 1951 upto 2003, Sections 3, 59, 94 and 128 as originally stood
were as follows:
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"Qualification for membership of the Council of States.
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 that State or territory.
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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 no votes shall
be received by proxy.
-
Secrecy of voting not to be infringed.
No witness or other persons shall be required to
state for whom he has voted at an election.
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Maintenance of secrecy of voting.
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Every
officer, clerk, agent or other person who performs any duty in connection with
the recording or counting of votes at any election shall not (except for some
purposes authorized by or under any law) communicate to any person any
information calculated to violate such secrecy.
-
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 fine or with
both." By Representation of People (Amendment) Act, 2003, (Act No.40 of 2003),
in Section 3 for the words 'in that state or territory', the words 'in India' were substituted.
In Sections 59, 94 and 128, following provisos
were inserted at the end.
-
"Provided
that the votes at every election to fill a seat or seats in the Council of
States shall be given by open ballot.
-
Provided
that this Section shall not apply to such witness or other person where he has
voted by open ballot.
-
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." Issues Two issues arise for
determination in this case. The first issue relates to the content and the
significance of the word 'domicile' whereas the second issue deals with
importance of the concept of 'secrecy' in voting under the constitutional
scheme.
Broad framework of the Constitution The
Constitution of India provides for the Union Legislature, called
"Parliament", through Article 79, to consist of the President and two
Houses to be known respectively as the "Council of States", also
known as the Rajya Sabha and the "House of the People", also known as
the Lok Sabha.
There is a similar provision in Article 168 for
the State Legislature, which, besides the Governor of the State, includes a
"Legislative Assembly', also known as the Vidhan Sabha in each State and
"Legislative Council", also known as the Vidhan Parishad, in some of
the States.
In the Union Legislature, i.e., the Parliament,
the Council of States, consists of (not more than) 250 members, out of whom 12
are nominated by the President in accordance with Article 80(3), the remaining
238 being "representatives of the States and of the Union Territories". The Fourth
Schedule to the Constitution sets out the allocation of seats in the Council of
States to be filled by such representatives of the States and of the Union Territories.
Article 80(4) provides that "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".
Article 80(5) further provides that representatives of the Union Territories in the Council of States
shall be chosen in such manner as Parliament may by law prescribe.
Article 84 is styled as a provision to indicate
"Qualification for membership of Parliament". In clauses (a) and (b),
Article 84 makes it incumbent for any person seeking to be chosen to fill a
seat in Parliament to be a citizen of India and of a certain age, which in the case of a
seat in the Council of States cannot be less than 30 years. Article 84(c)
provides that a candidate seeking to be elected as a Member of Parliament must
"possess such other qualifications as may be prescribed in that behalf by
or under any law made by Parliament".
Part XV of the Constitution pertains to the
subject matter of "Elections". It includes, presently, Articles 324
to 329. The superintendence, direction and control of elections vests in the
Election Commission.
Article 327 confers, on the Parliament, the
power, subject to the provisions of the Constitution, to make, from time to
time by law, provisions with respect to "all matters relating to, or in
connection with, elections", inter alia, "to either House of
Parliament", including "the preparation of electoral rolls, the
delimitation of the constituencies and all matters necessary for securing the
due consideration of such House or Houses".
Part XI of the Constitution pertains to the
"Relations between the Union and the States". Chapter I of Part XI is in respect of
"Legislative Relations". Article 245 generally states that the
Parliament, subject to the provisions of the Constitution, may make laws for
the whole or any part of the territory of India. Article 246 vests in the Parliament "the exclusive
power" to make laws with respect to any of the matters enumerated in List
I in the Seventh Schedule ("Union List", hereafter). The Union List,
as given in the Seventh Schedule includes Entry No.72, which relates to,
amongst others, the "Elections to Parliament".
History of RP Acts, 1950 and 1951 In the year
1952, the Parliament came to be duly constituted and summoned to meet for the
first session under the provisions of the Constitution. Till then, the
Constituent Assembly, which had prepared and adopted the Constitution,
functioned as the Provisional Parliament, in accordance with the provision
contained in Article 379. It may be added here that after the first General
Elections had led to the two Houses of Parliament being constituted, Article
379, having served its purpose, was deleted by Constitution (Seventh Amendment)
Act, 1956 with effect from 1st November, 1956.
The Provisional Parliament, in exercise of its
authority under Article 379 read with aforementioned enabling provisions,
enacted a law called the "Representation of the People Act, 1950"
(the RP Act, 1950), which came into force with effect from 12th May, 1950. This
law had been enacted to provide for "the allocation of seats in and the
delimitation of constituencies for the purpose of election to, the House of the
People and the Legislatures of States, the qualifications of voter at such
elections, the preparation of electoral rolls, and matters connected
therewith". It must be mentioned here that the subject matter relating to
"the manner of filling seats in the Council of States to be filled by the
representatives of Part- C States (later "Union Territories") was inserted
in this law by way of Act 73 of 1950 (to be read with the Adaptation of Laws
(No. 2) Order, 1956) which, among others, added Part IVA to the RP Act, 1950.
The RP Act, 1950 did not contain all the
provisions relating to elections. Provisions for the actual conduct of elections,
amongst others, to the Houses of Parliament, the qualifications for the
membership of such Houses etc. had been left to be made in subsequent measures.
In order to make provisions for such other subjects, the Provisional
Parliament, in exercise of its authority under Article 379 read with
aforementioned enabling provisions, enacted the RP Act, 1951, which was brought
into force with effect from 17th July, 1951.
Chapter I of Part II of the RP Act, 1951 related
to "Qualifications for membership of Parliament". It includes two
sections, namely Sections 3 and 4. We are not much concerned with Section 4
inasmuch as it pertains to qualifications for membership of the House of the
People.
Section 3 of the RP Act, 1951, in its original
form is the main bone of contention here.
Section 3 of the RP Act, 1951, as originally
enacted, read as under:
-
"Qualification for
membership of the Council of States. –
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A person shall not be
qualified to be chosen as a representative of any Part A or Part B State (other
than the State of Jammu and Kashmir) in the Council of States unless he is an
elector for a Parliamentary constituency in that State.
-
A person shall not be
qualified to be chosen as a representative of the States of Ajmer and Coorg or
of the States of Manipur and Tripura in the Council of States unless he is an
elector for any Parliamentary constituency in the State in which the election
of such representative is to be held.
-
Save as otherwise
provided in sub- section (2), a person shall not be qualified to be chosen as a
representative of any Part C State or group of such States in the Council of
States unless he is an elector for a Parliamentary constituency in that State
or in any of the States in that group, as the case may be." Section 3 of
the RP Act, 1951, was substituted by the following provision through the
Adaptation of Laws (No. 2) Order, 1956 and thus came to read as under:
-
"Qualification for
membership of the Council of States. –
A person shall not be qualified to be chosen as
a representative of any State other than the State of Jammu and Kashmir or Union territory in the
Council of States unless he is an elector for a Parliamentary constituency in
that State or territory." The above provision underwent a further change,
with effect from 14th December, 1966, as a result of Act 47 of 1966, which made it
applicable to all the States and Union Territories of India by omitting the words "other than the
State of Jammu & Kashmir".
Act 40 of 2003 has amended the provision, with
effect from 28th
August, 2003,
so as to substitute the words "in that State or territory" with the
words "in India". The amended provision reads as under:
-
"Qualification for
membership of the Council of States. –
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." Issue No.I: Deletion of
'domicile' The question which needs resolution is : what is meant by the word
"elector". For this, one will have to refer to certain other
provisions of the RP Act, 1950 and RP Act, 1951.
The effect of the amendment to Section 3 of RP
Act, 1951, brought about by Act 40 of 2003 thus is that a person offering his
candidature for election to fill a seat in the Council of States is now
required to be simpliciter "an elector for a Parliamentary constituency in
India"; that is to say, he is no longer required to be an elector for a
Parliamentary constituency in the "State or Territory" to which the
seat for which he is a candidate pertains.
The word "elector" has been defined in
Section 2(e) of the RP Act, 1951 which reads as under:
" 'elector' in relation to a constituency
means a person whose name is entered in the electoral roll of that constituency
for the time being in force and who is not subject to any of the
disqualifications mentioned in section 16 of the Representation of the People
Act, 1950 (43 of 1950)." Section 16 of the RP Act, 1950, which has been
referred to in the above-quoted definition of the word "elector"
reads as under:
-
"Disqualifications
for registration in an electoral roll.
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A
person shall be disqualified for registration in an electoral roll if he is
not a citizen of India; or is of unsound mind and stands so declared by a competent court;
or is for the time being disqualified from voting under the provisions of any
law relating to corrupt practices and other offences in connection with
elections.
-
The
name of any person who becomes so disqualified after registration shall
forthwith be struck off the electoral roll in which it is included:
Provided that the name of any person struck off
the electoral roll of a constituency by reason of a disqualification under
clause (c) of sub- section (1) shall forthwith be reinstated in that roll if
such disqualification is, during the period such roll is in force, removed
under any law authorizing such removal." Section 19 of the RP Act, 1950
relates to the "conditions of registration". It provides as under:
-
"Conditions of
registration.
Subject to the foregoing provisions of this
Part, every person who- is not less than [eighteen years] of age on the
qualifying date, and is ordinarily resident in a constituency, shall be
entitled to be registered in the electoral roll for that constituency."
The expression "ordinarily resident" as appearing in Section 19(b)
has been explained in Section 20 of the RP Act, 1950, which may also be
extracted, inasmuch as it is of great import in these matters. It reads as
under:
-
"Meaning of
'ordinarily resident'.
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A
person shall not be deemed to be ordinarily resident in a constituency on the
ground only that he owns; or is in possession of, a dwelling house therein.
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A
person absenting himself temporarily from his place of ordinary residence shall
not by reason thereof cease to be ordinarily resident therein.
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A
member of Parliament or of the Legislature of a State shall not during the term
of his office cease to be ordinarily resident in the constituency in the
electoral roll of which he is registered as an elector at the time of his
election as such member, by reason of his absence from that constituency in
connection with his duties as such member.
-
A
person who is a patient in any establishment maintained wholly or mainly for
the reception and treatment of persons suffering from mental illness or mental
defectiveness, or who is detained in prison or other legal custody at any
place, shall not by reason thereof be deemed to be ordinarily resident therein.
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Any
person having a service qualification shall be deemed to be ordinarily resident
on any date in the constituency in which, but for his having such service
qualification, he would have been ordinarily resident on that date.
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Any
person holding any office in India declared by the President in consultation
with the Election Commission to be an office to which the provisions of this
sub- section apply, shall be deemed to be ordinarily resident on any date in
the constituency in which, but for the holding of any such office, he would
have been ordinarily resident on that date.
-
The
statement of any such person as is referred to in sub-section (3) or sub-
section (4) made in the prescribed form and verified in the prescribed manner,
that [but for his having the service qualification] or but for his holding any
such office as is referred to in sub-section (4) he would have been ordinarily
resident in a specified place on any date, shall, in the absence of evidence to
the contrary, be accepted as correct.
-
The
wife of any such person as is referred to in sub-section (3) or sub- section
(4) shall if she be ordinarily residing with such person be deemed to be
ordinarily resident on in the constituency specified by such person under
sub-section (5).
-
If
in any case a question arises as to where a person is ordinarily resident at
any relevant time, the question shall be determined with reference to all the
facts of the case and to such rules as may be made in this behalf by the
Central Government in consultation with the Election Commission.
-
In
sub-sections (3) and (5) "service qualification" means- being a
member of the armed forces of the Union; or being a member of a force to which
the provisions of the Army Act, 1950 (46 of 1950), have been made applicable
whether with or without modifications;
or being a member of an armed police force of a
State, who is serving outside that State; or being a person who is employed
under the Government of India, in a post outside India.
All the above provisions of law have to be read
together and the conjoint effect thereof is that a person in order to qualify
to be registered as an elector in relation to a constituency, besides
fulfilling other qualifications, must be a citizen of India, not less than 18
years of age on the qualifying date (which by virtue of Section 14 of RP Act,
1950, means the first day of January of the year in which the electoral list of
the constituency is prepared or revised), and, what is significant here, be
"ordinarily resident" in that constituency.
As a result of the impugned amendment to Section
3 of the RP Act, 1951, it is no longer required that the candidate for an
election to fill a seat in the Council of States be "ordinary
resident" of the State to which that seat pertains.
The above amendment, which can be loosely
described as an amendment doing away with the requirement of domicile, has been
challenged as unconstitutional in the writ petitions at hand.
Submissions on domicile requirements Shri
Sachar, learned senior counsel for the petitioner, contended that the impugned
amendment to Section 3 of the RP Act, 1951 offends the principle of Federalism,
the basic feature of the Constitution; it seeks to change the character of
republic which is the foundation of our democracy and that it distorts the
balance of power between the Union and the States and is, therefore, violative
of the provisions of the Constitution. In this connection, it was urged that
the Council of States is a House of Parliament constituted to provide
representation of various States and Union Territories; that its members have
to represent the people of different States to enable them to legislate after
understanding their problems;
that the nomenclature "Council of
States" indicates the federal character of the House and a representative
who is not ordinarily resident and who does not belong to the State concerned
cannot effectively represent the State.
Learned counsel further submits that India has adopted
parliamentary system of democracy in which the Union Legislature is a
bi-cameral legislature, that such legislature represents the will of the people
of the State whose cause has to be represented by the members. It is urged that
the impugned amendments removes the distinction in the intent and purpose of
Lok Sabha and Rajya Sabha and that the mere fact that there exists numerous instances
of infringement of the law concerning the requirements of residence cannot
constitute a valid object or rational reason for deleting the requirement of
residence. Reliance is also placed in this connection on Rajya Sabha Rules to
show the importance of residence as qualification of a representative of the
State. It is further contended that the requirement of domicile makes the upper
House an 'alter ego' of the lower House.
Mr. Nariman, appearing on behalf of the
petitioner Shri Indrajeet, while supplementing the arguments above- mentioned,
contended that the Constitution and the RP Acts 1950 and 1951 respectively have
always been read as forming part of an integral scheme under which a person
ordinarily resident in a constituency is entitled to be registered in the
electoral roll of that constituency and that the said scheme is provided for in
Article 80 and Article 84 of the Constitution as also in Sections 17, 18 and 19
of the RP Act, 1950 and in Section 3 of the RP Act, 1951, which scheme guarantees
the representative character of the Council. It is urged that by deletion of
the word 'domicile' or 'residence' or by not reading the word 'domicile' or
'residence' in Article 80(4), the basic requirement of the representative
federal body stands destroyed.
Shri Vahanvati, Ld. Solicitor General of India,
on the question of domicile submitted that the impugned amendments became
necessary in view of various deficiencies experienced in the working of the RP
Act, 1951; that the said amendments did not alter or distort the character of
the Council of States and that the concept of residence/domicile is a matter of
qualification under Article 84(c) which is to be prescribed by the Parliament
under the Indian Constitution unlike the US Constitution. In this connection,
it was urged that the members of the Legislative Assembly are in the best
position to decide as to who would represent them in the Council of States. The
submission made was that by the impugned amendment, the qualification is made
more broad based and that the amendment became necessary for ensuring
representation of unrepresented States. According to Union of India, 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 and,
therefore, the word "States" appearing in clause (4) of Article 80
does not comprise the requirement of residence.
Constitutional & Legislative History
-
Rule
of interpretation Before coming to the legislative history, we may state that
the rule of interpretation says that in order to discern the intention behind
the enactment of a provision if ambiguous and to interpret the same, one needs
to look into the historical legislative developments.
The key question is whether residence was ever
treated as a constitutional requirement under Article 80(4).
In re: Special Reference No. 1 of 2002 [(2002) 8
SCC 237], it was observed that:
"One of the known methods to discern the
intention behind enacting a provision of the Constitution and also to interpret
the same is to look into the historical legislative developments, Constituent
Assembly Debates, or any enactment preceding the enactment of the
Constitutional provisions."
-
Legislative History The
Constitution has established a federal system of Government with bi-cameral
legislature at the Centre which is not something which was grafted in the
Constitution for the first time. Its history goes back to Government of India
Act, 1915 as amended in 1919. Even under the Government of India Act, 1919, the
qualification of residence in relation to a particular constituency was
considered to be unnecessary.
This position is indicated by Rule XI of the
then Electoral Rules. This position is also indicated by the provisions of the
Government of India Act, 1935 under which the Legislature at the Centre was
bi-cameral. The Lower Chamber was called 'House of Assembly'. The Upper Chamber
was called 'Council of States'. Under the Government of India Act, 1935 (for
short, the 'GI Act'), the Council of States was a permanent body with one-third
of its members retiring every third year. Sixth Schedule to the GI Act made
provisions for franchise. Part I of that Schedule contained qualifications. It
did not include residence as a qualification of the elector. However, there
were other parts to the Sixth Schedule which dealt with certain subjects
exclusive for different provinces in which there was a requirement of
residence. This was under the heading 'general requirements. However, there was
no uniformity. In certain cases, residence was prescribed as a qualification
(for example in the case of Central Provinces, Berar and Bengal) whereas in provinces, namely, Assam, the qualification was
'a family dwelling place or a place where the elector ordinarily resided'.
Therefore, the qualification of residence was
not uniform. It depended upon local conditions. It deferred from province to
province.
At this stage, we may clarify that under strict
federalism, the Lower House represents 'the people' and the Upper House
consists of the 'Union' of the Federation. In strict federalism both the Chambers had
equal legislative and financial powers.
However, in the Indian context, strict
federalism was not adopted.
The Council of State under the GI Act became
Council of States under the Constitution of India. This fact is important.
In this connection, we have to look into the
minutes of the Union Constitution Committee which recorded vide Item 21 the
manner of computing weight proportional representation based on population
strength. The said minutes further show the recommendation that the Upper House
should include scientists, teachers etc. for which purpose, the President
should be given authority to nominate. The necessity of the Upper Chamber was
also the subject matter of debate in the Constituent Assembly on 28th July, 1947. These debates indicate
the purpose for having the Upper Chamber. The object of the Upper Chamber as
envisaged was to hold dignified debates on important issues and to share the
experience of seasoned persons who were expected to participate in the debate
with an amount of learning.
Finally, on 28th July, 1947, a policy decision was
taken by the Constituent Assembly that the Federal Parliament shall consist of
two chambers.
In the first draft Constitution, Fourth Schedule
related to the composition of the Federal Parliament. Paragraph 1 of Part I of
the Fourth Schedule dealt with the general qualifications for the members which
included citizenship and minimum age of not less than 35 years in the case of a
seat in the Council of States. The said paragraph further stated that apart
from citizenship and age qualifications, it would be open to the Parliament to
describe any other qualification as may be appropriate. Paragraph 6 of Part I
of the Fourth Schedule appended to the first draft Constitution provided for
the qualification of residence in a State for a candidate to be chosen to the
Council of States. Clause 60 of the first draft Constitution stated that all
matters relating to or connected with elections to either House of the Federal
Parliament shall be regulated by the Fourth Schedule, unless otherwise provided
by the Act of the Federal Parliament. (Emphasis supplied). However, the Fourth
Schedule was omitted by the Drafting Committee. This was on 11th February, 1948.
Therefore, with this deletion, the requirement
of residence was done away with.
The entire discussion with regard to the
legislative history is only to show that residence was never the constitutional
requirement. It was never treated as an essential ingredient of the structure
of the Council of States.
It has been treated just a matter of
qualification. Further, the legislative history shows that qualification of
residence has never been a constant factor. As the legislative history shows,
ownership of assets, dwelling house, income, residence etc. were considered as
qualification from time to time depending upon the context and the ground
reality. The power to add qualifications was given to the Federal Parliament.
Therefore, the legislative history of constitutional enactments like the GI Act
shows that residence or domicile are not the essential ingredients of the
structure and the composition of the Upper House.
At this stage, one event needs to be
highlighted. The Drafting Committee included a separate chapter under Part XIII
on the subject of 'elections' to the draft Constitution which corresponded to
Article 327 in Part XV of the Constitution.
Article 290 empowered the Parliament to make
laws providing for all matters relating to or in connection with elections to
the House of Parliament. Ultimately, despite all objections against bicameral
legislature, the Constituent Assembly took the decision to have Federal
Parliament consisting of two chambers. In its report, the Drafting Committee
recommended basic qualifications for membership of Parliament being a subject
which should be left to the wisdom of the Parliament. Accordingly, the Drafting
Committee recommended Article 68A which corresponds to Article 84 in the Constitution.
This was the first time when a provision was included to prescribe
qualifications which included citizenship and the minimum age subject to any
other qualification that may be prescribed by law made by the Parliament. The
Drafting Committee justified the inclusion of Article 68A in the following
words :
"Article 152 prescribes an age
qualification for members of State Legislatures. There is no corresponding
provision for members of Parliament.
There is, moreover, a strong feeling in certain
quarters that a provision prescribing or permitting the prescription of
educational and other qualifications for membership both of Parliament and of
the State Legislatures should be included in the Draft. If any standard of
qualifications is to be laid down for candidates for membership it must be so
precise that an election tribunal will be able to say, in a given case, whether
the candidate satisfied it or not. To formulate precise and adequate standards
of this kind will require time.
Further, if any such qualifications are laid
down in the Constitution itself, it would be difficult to alter them if
circumstances so require. The best course would, therefore, be to insert an
enabling provision in the Constitution and leave it to the appropriate
legislature to define the necessary standards later.
Whatever qualifications may be prescribed, one
of them would certainly have to be the citizenship of India." To sum up, the
legislative history indicates that residence is not a constitutional
requirement of clause (4) of Article 80.
Residence is a matter of qualification.
Therefore, it comes under Article 84 which enables the Parliament to prescribe
qualifications from time to time depending upon the fact situation. Unlike USA, residence is not a
constitutional requirement. In the context of Indian Constitution,
residence/domicile is an incident of federalism which is capable of being
regulated by the Parliament as a qualification which is the subject matter of
Article 84. This is borne out by the legislative history.
Composition of Parliament India's Parliament is
bicameral. The two Houses along with the President constitute Parliament
[Article 79]. The Houses differ from each other in many respects. They are
constituted on different principles, and, from a functional point of view, they
do not enjoy a co-equal status. Lok Sabha is a democratic chamber elected
directly by the people on the basis of adult suffrage. It reflects popular
will. It has the last word in matters of taxation and expenditure. The Council
of Ministers is responsible to the Lok Sabha.
Rajya Sabha, on the other hand, is constituted
by indirect elections. The Council of Ministers is not responsible to the Rajya
Sabha. Therefore, the role of Rajya Sabha is somewhat secondary to that of Lok
Sabha, barring a few powers in the arena of Centre-State relationship.
Rajya Sabha is a forum to which experienced
public figures get access without going through the din and bustle of a general
election which is inevitable in the case of Lok Sabha.
It acts as a revising chamber over the Lok
Sabha. The existence of two debating chambers means that all proposals and
programmes of the Government are discussed twice. As a revising chamber, the
Rajya Sabha helps in improving Bills passed by the Lok Sabha. Although the
Rajya Sabha is designed to serve as a Chamber where the States and the Union of
India are represented, in practice, the Rajya Sabha does not act as a champion
of local interests. Even though elected by the State Legislatures, the members
of the Rajya Sabha vote not at the dictate of the State concerned, but
according to their own views and party affiliation. In fact, at one point of
time in 1973, a private member's resolution was to the effect that the Rajya
Sabha be abolished.
Composition of Rajya Sabha The maximum strength
of Rajya Sabha is fixed at 250 members, 238 of whom are elected representatives
of the States and the Union Territories and 12 are nominated by the President. The seats in the
Upper House are allotted among the various States and Union Territories on the basis of
population, the formula being one seat for each million of population for the
first five million and thereafter one seat for every two million population. A
slight advantage is, therefore, given to States with small population over the
States with bigger population. This is called "weighted proportional
representation". The system of proportional representation helps in giving
due representation to minority groups. The representatives of a State in Rajya
Sabha are elected by the elected members of the State Legislative Assembly in
accordance with the system of proportional representation by means of a single
transferable vote [Article 80(1)(b) and Article 80(4)]. Rajya Sabha is a
continuing body. It has nominated members. They are nominated by the President
on the advice of Council of Ministers. There is no difference in status between
elected and nominated members of Rajya Sabha except that the elected members
can participate in the election of the President whereas the nominated members
cannot do so. One-third of its members retire every two years and their seats
are filled by fresh elections and nominations.
Rajya Sabha's power under Article 249 of the
Constitution The Indian union has been described as the 'holding together' of
different areas by the constitution framers, unlike the 'coming together' of
constituent units as in the case of the U.S.A. and the confederation of Canada.
Hence, the Rajya Sabha was vested with a contingency based power over state
legislatures under Article 249, which contributes to the 'Quasi-federal' nature
to the government of the Indian union.
Under Article 249(1), if the Rajya Sabha
declares by a resolution, supported by not less than two-thirds of it's members
present and voting, that it is necessary or expedient in national interest that
Parliament should make laws with respect to any of the matters enumerated in
the State list [List II of Seventh Schedule read with Article 246], specified
in the resolution, it shall be lawful for parliament to make laws for the whole
or any part of the territory of India with respect to that matter while the
resolution remains in force. Article 249 clause (2) and (3) specify the
limitations on the enforcement of this provision. Article 251 when read with
Article 249 provides that in case of inconsistency between a law made by
parliament under Article 249 and a law made by a State legislature, the Union
law will prevail to the extent of such inconsistency or 'repugnancy'. In effect
this provision permits the Rajya Sabha to encroach upon the specified
legislative competence of a state legislature by declaring a matter to be of
national importance. Though it may have been incorporated as a safeguard in the
original constitutional scheme, this power allows the Union government to
interfere with the functioning of a State government, which is most often
prompted by the existence of opposing party-affiliations at the Central and
state level. This bias towards 'Unitary power' under normal circumstances is
not seen either in U.S.A. or Canada.
Federalism A lot of energy has been devoted on
behalf of the petitioners to build up a case that the Constitution of India is
federal. The nature of Federalism in Indian Constitution is no longer res
integra.
There can be no quarrel with the proposition
that Indian model is broadly based on federal form of governance.
Answering the criticism of the tilt towards the
Centre, Shri T.T. Krishnamachari, during debates in the Constituent Assembly on
the Draft Constitution, had stated as follows:
"Sir, I would like to go into a few
fundamental objections because as I said it would not be right for us to leave
these criticism uncontroverted. Let me take up a matter which is perhaps partly
theoretical but one which has a validity so far as the average man in this
country is concerned. Are we framing a unitary Constitution? Is this
Constitution centralizing power in Delhi? Is there any way provided by means of which
the position of people in various areas could be safeguarded, their voices heard
in regard to matters of their local administration? I think it is a very big
charge to make that this Constitution is not a federal Constitution, and that
it is a unitary one. We should not forget that this question that the Indian
Constitution should be a federal one has been settled by our Leader who is no
more with us, in the Round Table Conference in London eighteen years back." "I would
ask my honourable friend to apply a very simple test so far as this
Constitution is concerned to find out whether it is federal or not. The simple
question I have got from the German school of political philosophy is that the
first criterion is that the State must exercise compulsive power in the
enforcement of a given political order, the second is that these powers must be
regularly exercised over all the inhabitants of a given territory; and the
third is the most important and that is that the activity of the State must not
be completely circumscribed by orders handed down for execution by the superior
unit. The important words are 'must not be completely circumscribed', which
envisages some powers of the State are bound to be circumscribed by the
exercise of federal authority. Having all these factors in view, I will urge
that our Constitution is a federal Constitution. I urge that our Constitution
is one in which we have given power to the Units which are both substantial and
significant in the legislative sphere and in the executive sphere."
(emphasis supplied) In this context, Dr. B.R. Ambedkar, speaking in the Constituent
Assembly had explained the position in the following words:
"There is only one point of Constitutional
import to which I propose to make a reference. A serious complaint is made on
the ground that there is too much of centralization and that the States have
been reduced to Municipalities. It is clear that this view is not only an
exaggeration, but is also founded on a misunderstanding of what exactly the
Constitution contrives to do. As to the relation between the Centre and the
States, it is necessary to bear in mind the fundamental principle on which it
rests.
The basic principle of Federalism is that the
legislative and executive authority is partitioned between the Centre and the
States not by any law to be made by the Centre but the Constitution itself.
This is what the Constitution does. The States, under our Constitution, are in
no way dependent upon the Centre for their legislative or executive authority.
The Centre and the States are co-equal in this matter. It is difficult to see
how such a Constitution can be called centralism. It may be that the
Constitution assigns to the Centre too large a field for the operation of its
legislative and executive authority than is to be found in any other Federal
Constitution. It may be that the residuary powers are given to the Centre and
not to the States. But these features do not form the essence of federalism.
The chief mark of federalism, as I said lies in
the partition of the legislative and executive authority between the Centre and
the Units by the Constitution. This is the principle embodied in our
Constitution." (emphasis supplied) The Constitution incorporates the
concept of federalism in various provisions. The provisions which establish the
essence of federalism i.e. having States and a Centre, with a division of
functions between them with sanction of the Constitution include, among others,
Lists II and III of Seventh Schedule that give plenary powers to the State
Legislatures;
the authority to Parliament to legislate in a
field covered by the State under Article 252 only with the consent of two or
more States, with provision for adoption of such legislation by any other
State; competence of Parliament to legislate in matters pertaining to the State
List, only for a limited period, under Article 249 "in the national
interest" and under Article 250 during "emergency"; vesting the
President with the power under Article 258(1) to entrust a State Government,
with consent of the Governor, functions in relation to matters to which
executive power of the Union extends, notwithstanding anything contained in the
Constitution; decentralization of power by formation of independent
municipalities and Panchayats through 73rd and 74th Amendment; etc.
In re: Under Article 143, Constitution of India,
(Special Reference No. 1 of 1964) [AIR 1965 SC 745 (Paragraph 39 at 762)], this
Court ruled thus:
"In dealing with this question, it is
necessary to bear in mind one fundamental feature of a Federal Constitution. In
England, Parliament is sovereign; and in the words of Dicey, the three
distinguishing features of the principle of Parliamentary Sovereignty are that
Parliament has the right to make or unmake any law whatever; that no person or
body is recognised by the law of England as having a right to over-ride or set
aside the legislation of Parliament, and that the right or power of Parliament
extends to every part of the Queen's dominions
-
On the other hand, the
essential characteristic of federalism is "the distribution of limited
executive, legislative and judicial authority among bodies which are coordinate
with and independent of each other". The supremacy of the constitution is
fundamental to the existence of a federal State in order to prevent either the
legislature of the federal unit or those of the member States from destroying
or impairing that delicate balance of power which satisfies the particular
requirements of States which are desirous of union, but not prepared to merge
their individuality in a unity. This supremacy of the constitution is protected
by the authority of an independent judicial body to act as the interpreter of a
scheme of distribution of powers. Nor is any change possible in the
Constitution by the ordinary process of federal or State legislation
-
Thus the dominant
characteristic of the British Constitution cannot be claimed by a Federal
Constitution like ours." In the case of State of Karnataka v. Union of India &
Anr. [1978 (2) SCR 1], Justice Untwalia (speaking for Justice Singhal, Justice
Jaswant Singh and for himself), observed as follows:
"Strictly speaking, our Constitution is not
of a federal character where separate, independent and sovereign State could be
said to have joined to form a nation as in the United States of America or as
may be the position in some other countries of the world. It is because of that
reason that sometimes it has been characterized as quasi-federal in
nature".
In S. R. Bommai & Ors. v. Union of India & Ors.
[AIR 1994 SC 1918 : 1994 (3) SCC 1], a Constitution Bench comprising 9 Judges
of this Court considered the nature of federalism under the Constitution of
India. Justice A.M. Ahmadi, in Paragraph 23 of his Judgment observed as under:
" the significant absence of the
expressions like 'federal' or 'federation' in the constitutional vocabulary,
Parliament's powers under Articles 2 and 3 elaborated earlier, the
extraordinary powers conferred to meet emergency situations, the residuary
powers conferred by Article 248 read with Entry 97 in List I of the VII
Schedule on the Union, the power to amend the Constitution, the power to issue
directions to States, the concept of a single citizenship, the set up of an
integrated judiciary, etc., etc., have led constitutional experts to doubt the
appropriateness of the appellation 'federal' to the Indian Constitution. Said
Prof. K. C. Wheare in his work 'Federal Government:
'What makes one doubt that the Constitution of
India is strictly and fully federal, however, are the powers of intervention in
the affairs of the States given by the Constitution to the Central Government
and Parliament'." Thus in the United States, the sovereign States enjoy their own
separate existence which cannot be impaired; indestructible States having
constituted an indestructible Union. In India, on the contrary, Parliament can by law form a new State, alter
the size of an existing State, alter the name of an existing State, etc. and
even curtail the power, both executive and legislative, by amending the
Constitution. That is why the Constitution of India is differently described, more
appropriately as 'quasi- federal' because it is a mixture of the federal and
unitary elements, leaning more towards the latter but then what is there in a
name, what is important to bear in mind is the thrust and implications of the
various provisions of the Constitution bearing on the controversy in regard to
scope and ambit of the Presidential power under Article 356 and related
provisions." (emphasis supplied) Justice K. Ramaswami in Paragraph 247 and
248 of his separate Judgment in the same case observed as under: -
-
"Federalism
envisaged in the Constitution of India is a basic feature in which the Union of
India is permanent within the territorial limits set in Article 1 of the
Constitution and is indestructible.
The State is the creature of the Constitution
and the law made by Articles 2 to 4 with no territorial integrity, but a
permanent entity with its boundaries alterable by a law made by Parliament.
Neither the relative importance of the legislative entries in Schedule VII,
Lists I and II of the Constitution, nor the fiscal control by the Union per se are decisive to
conclude that the Constitution is unitary. The respective legislative powers
are traceable to Articles 245 to 254 of the Constitution.
The State qua the Constitution is federal in structure
and independent in its exercise of legislative and executive power. However,
being the creature of the Constitution the State has no right to secede or
claim sovereignty. Qua the Union, State is quasi-federal. Both are coordinating institutions and
ought to exercise their respective powers with adjustment, understanding and
accommodation to render socio-economic and political justice to the people, to
preserve and elongate the constitutional goals including secularism.
39.A
The
preamble of the Constitution is an integral part of the Constitution.
Democratic form of Government, federal
structure, unity and integrity of the nation, secularism, socialism, social
justice and judicial review are basic features of the Constitution."
(emphasis supplied) Justice B. P. Jeevan Reddy, writing separate Judgment (for
himself and on behalf of S.C. Agrawal, J.) concluded in Paragraph 276 thus:
"The fact that under the scheme of our
Constitution, greater power is conferred upon the Centre vis-`-vis the States
does not mean that States are mere appendages of the Centre. Within the sphere
allotted to them, States are supreme. The Centre cannot tamper with their
powers. More particularly, the Courts should not adopt an approach, an
interpretation, which has the effect of or tends to have the effect of
whittling down the powers reserved to the States.
must put the Court on guard against any
conscious whittling down of the powers of the States. Let it be said that the
federalism in the Indian Constitution is not a matter of administrative
convenience, but one of principle the outcome of our own historical process and
a recognition of the ground realities. . enough to note that our Constitution
has certainly a bias towards Centre vis-`-vis the States (Automobile Transport
(Rajasthan) Ltd. v. State of Rajasthan, (1963) 1 SCR 491 at page 540 : (AIR 1962 SC 1406). It is
equally necessary to emphasise that Courts should be careful not to upset the
delicately crafted constitutional scheme by a process of interpretation.
(emphasis supplied) In paragraph 98, Sawant, J.
proceeded to observe as under: - "In this connection, we may also refer to
what Dr Ambedkar had to say while answering the debate in the Constituent
Assembly in the context of the very Articles 355, 356 and 357. . He has
emphasised there that notwithstanding the fact that there are many provisions
in the Constitution whereunder the Centre has been given powers to override the
States, our Constitution is a federal Constitution. It means that the States
are sovereign in the field which is left to them. They have a plenary authority
to make any law for the peace, order and good Government of the State." In
Paragraph 106, his following observations are relevant:-
"Thus the federal principle, social
pluralism and pluralist democracy which form the basic structure of our
Constitution demand that the judicial review of the Proclamation issued under
Article 356(1) is not only an imperative necessity but is a stringent duty and
the exercise of power under the said provision is confined strictly for the
purpose and to the circumstances mentioned therein and for none else."
(emphasis supplied) In ITC Ltd. v. Agricultural Produce Market Committee &
Ors. [(2002) 9 SCC 232], this Court ruled thus: - "The Constitution of
India deserves to be interpreted, language permitting, in a manner that it does
not whittle down the powers of the State Legislature and preserves the
federalism while also upholding the Central supremacy as contemplated by some
of its articles." (emphasis supplied) In State of West Bengal v. Kesoram Industries
Ltd. & Ors. [AIR 2005 SC 1646 : (2004) 10 SCC 201], decided by a
Constitution bench comprising 5 Judges, the majority judgment in Paragraph 50
observed as under:
"Yet another angle which the Constitutional
Courts would advisedly do better to keep in view while dealing with a tax
legislation, in the light of the purported conflict between the powers of the
Union and the State to legislate, which was stated forcefully and which was
logically based on an analytical examination of constitutional scheme by Jeevan
Reddy, J. in S.R. Bommai and others v. Union of India [(1994) 3 SCC 1], may be
touched. Our Constitution has a federal structure. Several provisions of the
Constitution unmistakably show that the Founding Fathers intended to create a
strong centre.." (emphasis supplied) True, the federal principle is
dominant in our Constitution and that principle is one of its basic features,
but, it is also equally true that federalism under Indian Constitution leans in
favour of a strong centre, a feature that militates against the concept of
strong federalism. Some of the provisions that can be referred to in this
context include the power of the Union to deal with extraordinary situations
such as during the emergency (Article 250, 252, 253) and in the event of a
proclamation being issued under Article 356 that the governance of a State
cannot be carried on in accordance with the provisions of the Constitution; the
power of the Parliament to legislate with respect to a matter in the State List
in the national interest in case there is a resolution of the Council of States
supported by prescribed majority (Article 249); the power of the Parliament to
provide for creation and regulation of All India Services common to Union and
the States in case there is a Resolution of the Council of States supported by
not less than two-third majority (Article 312);
there is only one citizenship namely the
citizenship of India; and, perhaps most important, the power of the Parliament in
relation to the formation of new States and alteration of areas, boundaries or
names of States (Article 3).
This Court in the case of State of West Bengal v. Union of India
[(1964) 1 SCR 371 at 396], has observed that our Constitution is not of a true
or a traditional pattern of federation. In a similar vein are other judgments
of the Court, like State of Rajasthan & Ors. v. Union of India Etc. Etc.
[(1978) 1 SCR 1 at pages 4G and 33F], that speak of the conspectus of the
provisions that whatever appearance of a federal structure our Constitution may
have, judging by the contents of the power which a number of provisions carry
with them and the use made of them, is in its operation, more unitary than
federal.
The concept of federalism in our Constitution,
it has been held, is vis-`-vis the legislative power as would be evident by
various Articles of the Constitution. In fact, it has come into focus in the
context of distribution of legislative powers under Article 246. {ITC Ltd. V.
Agricultural Produce Market Committee & Ors. [(2002) 9 SCC 232]} The
Commission on Inter-State Relations (Sarkaria Commission), in its Report has
specifically said that the Constitution as emerged from the Constituent
Assembly in 1949, has important federal features but it cannot be federal in
the classical sense. It was not the result of an agreement to join the
federation, unlike the United States. There is no dual citizenship, i.e., of the Union and the States. (Pages
8 and 9 of the Report of the Commission on Centre-State Relations, Part-I, and
paragraphs 1.3.04, 1.3.05, 1.3.06, 1.3.07].
The arguments of the Writ Petitioners about the
status, position, role and character of the Council of States in the
Constitutional scheme have to be examined in the light of well- settled law,
culled out above, as to the nature of Indian federalism.
In his attempt to argue that there necessarily
has to be a territorial nexus with a State or a Union Territory in a federal
set up, Mr. Rao for the State of Tamil Nadu referred to the use of the
expression "We, the people of India" in the Preamble, description of
India as a "Union of States" in Article 1; territory of India being
comprised of (1) the territories of the States and (b) the territories of the
Union Territories as per Article 1(3);
Article 326 requiring a person to be a citizen
of India so as to be an elector;
and the provisions about citizenship of India as contained in Articles 5, 6, 8 & 9 laying
stress on the territory of India. He also referred to the Collins Paperback English Dictionary to
point out meanings of the expressions "Country" [a territory
distinguished by its people, culture, geography, etc.; an area of land
distinguished by its political autonomy;
state; the people of a territory or state] and
"State" [a sovereign political power or community; the territory
occupied by such a community; the sphere of power in such a community: affairs
of state; one of a number of areas or communities having their own governments
and forming a federation under a sovereign government, as in the U.S.].
Mr. Sachar, taking a similar line, submitted
that requirement of domicile is so intrinsic to the concept of Council of
States that its deletion not only negates the constitutional scheme making the
working of the Constitution undemocratic but also violates the federal
principle which is one of the basic features of the Constitution. He also
submitted that the central idea to be kept in mind for appreciating the
argument is that it is government "of the people" and "by the
people".
Thus, it is the argument of the petitioners that
"Birth" and "Residence" are the two constituently
recognized links with a State or a Union Territory in terms of the Constitution.
In order to represent a State or a Union
Territory in the Council of States in terms of Article 80, a person should be a
citizen of India having an identifiable nexus with the State or the Union
Territory because the very concept of Council of States recognizes that in a
federal constitutional set up, the States and Union Territories have their own
problems, interests, concerns and views about many issues and, therefore, there
shall be a forum exclusively to represent the States and the Union Territories
in the national legislature, i.e.
Parliament. Unless a person belongs to a State or
a Union Territory, in the scheme of the
Constitution he will not have the capacity to represent the State or the Union Territory, as the case may be.
But then, India is not a federal State in the traditional sense
of the term. There can be no doubt as to the fact, and this is of utmost
significance for purposes at hand, that in the context of India, the principle of
federalism is not territory related. This is evident from the fact that India
is not a true federation formed by agreement between various States and
territorially it is open to the Central Government under Article 3 of the
Constitution, not only to change the boundaries, but even to extinguish a State
{State of West Bengal v. Union of India, [(1964) 1 SCR 371]}. Further, when it
comes to exercising powers, they are weighed heavily in favour of the Centre,
so much so that various descriptions have been used to describe India such as a
pseudo-federation or quasi- federation in an amphibian form, etc.
The Constitution provides for the bicameral
legislature at the centre. The House of the People is elected directly by the
people. The Council of States is elected by the Members of the Legislative
assemblies of the States. It is the electorate in every State who are in the
best position to decide who will represent the interests of the State, whether
as members of the lower house or the upper house.
It is no part of Federal principle that the
representatives of the States must belong to that State. There is no such
principle discernible as an essential attribute of Federalism, even in the
various examples of upper chamber in other countries.
Other Constitutions Role of Rajya Sabha
vis-`-vis role of Upper House in the other Constitutions The growth of
'Bicameralism' in parliamentary forms of government has been functionally
associated with the need for effective federal structures. This nexus between
the role of 'Second Chambers' or Upper Houses of Parliament and better
co-ordination between the Central government and those of the constituent units,
was perhaps first laid down in definite terms with the Constitution of the United States of
America,
which was ratified by the thirteen original states of the Union in the year 1787. The
Upper House of the Congress of the U.S.A., known as the Senate, was theoretically modeled
on the House of Lords in the British Parliament, but was totally different from
the latter with respect to its composition and powers.
Since then, many nations have adopted a
bicameral form of central legislature, even though some of them are not
federations. On account of Colonial rule, these British institutions of
parliamentary governance were also embodied in the British North America Act,
1867 by which the Dominion of Canada came into existence and The Constitution
of India, 1950. In Canada, the Parliament consists of the House of Commons and the Senate
('Upper House'). Likewise the Parliament of the Union of India consists of the
Lok Sabha (House of the People) and the Rajya Sabha (Council of States, which
is the Upper House). In terms of their functions as agencies of representative
democracies, the Lower Houses in the Legislatures of India, U.S.A and Canada namely the Lok Sabha,
the House of Representatives and the House of Commons broadly follow the same
system of composition. As of now, Members of the Lower Houses are elected from
pre- designated constituencies through universal adult suffrage.
The demarcation of these constituencies is in
accordance with distribution of population, so as to accord equity in the value
of each vote throughout the territory of the country. However, with the
existence of constituent states of varying areas and populations, the
representation accorded to these states in the Lower House becomes highly
unequal. Hence, the composition of the Upper House has become an indicator of
federalism, so as to more adequately reflect the interests of the constituent
states and ensure a mechanism of checks and balances against the exercise of
power by central authorities that might affect the interests of the constituent
states.
However, the area of focus is to analyse the
role of second chambers in the context of centre-state relations i.e.
embodiment of different degrees of federalism. This motive also illustrates the
choice of the Indian Rajya Sabha, the U.S. Senate and the Canadian Senate, since these
three nations are notable examples of working federations over large
territories and populations which have a high degree of diversity at the same
time. The chief criterion of comparison will be the varying profile of
representation accorded to the constituents units by the methods of composition
and the differences in the powers vested with the 'Upper houses' in the
constitutional scheme of the countries. Many Political theorists and
Constitutional experts are of the opinion that in the contemporary context,
'Second Chambers' are losing their intended characteristics of effectively
representing the interests of states and are increasingly becoming 'national'
institutions on account of more economic, social and political affinity
developing between states. Hence, a comparative study of the working of
bicameralism can assist the understanding of such dynamics within a Federal
system of governance.
As mentioned earlier, the emergence of Second
Chamber in a Federal context was first seen in the Constitution of the United States. The thirteen original
colonies had been governed under varying structures until independence from
British Rule and hence the element of states' identity was carried into the
subsequent Union. For purposes of the
Federal legislature, there were concerns by the smaller states that the
recognition of constituencies on the basis of population would accord more
representation and power to the bigger and more populous states. Furthermore,
in that era, voting rights were limited to white males and hence the size of
the electorates were relatively larger in the Northern states as compared to
the Southern states which had a comparatively higher proportion of Negroid
population who had no franchise.
Hence, the motives of Federalism and ensuring of
more parity between states of different sizes resulted in a compromise in the
drafting of the constitution. While the Lower House of Congress, i.e. the House
of representatives was to be constituted by members elected from Constituencies
based on population distribution, the Senate was based on equal representation
for all states. Initially, the two senators from each state were elected by the
respective State legislatures but after the 17th amendment of 1913, Senators
have been elected by open adult suffrage among the whole electorate of a state.
This inherent motive of ensuring a
counter-balance to the power of the federal government and larger states has
persisted in the functioning of the Senate. This is reflected by the fact that
the U.S. Senate has also been vested with certain extra-legislative powers,
which distinguish it from Second Chambers in other countries. Moreover, the
Senate is a continuing body with senators being elected for 6 year terms and 1/3rd
of the members retiring or seeking re-election every 2 years. With the addition
of more states to the Union, the numerical strength of the U.S. senate has also increased.
The Parliament of the Dominion of Canada in its
present from was established by the British North America Act, 1867 (also known
as the Constitution Act, 1867). Canada to this day remains a constitutional monarchy
with a parliamentary form of government, and a Governor-General appointed by
the British sovereign acts as the nominal head of state. Prior to the 1867 Act,
the large territories that now constitute Canada (with the exception of Quebec, which had the
historical influence of French rule) were being administered as distinct
territories. This act established a confederation among the constituent
provinces. Hence, the parliament of the Dominion was in effect the federal
legislature comprising of the House of Commons and the Senate. The Senate was
given two major functions in the constitution. First, it was to be the chamber
of "sober second thought". Such a limit should prevent the elected
House of Commons from turning Canada into a "mobocracy", as the framers of
Confederation (the 1867 Act) saw in case of the U.S.A. The Senate was thus given the power to
overturn many types of legislation introduced by the Commons and also to delay
any changes to the constitution, thus 'preventing the Commons from committing
any rash actions'. While the House of Commons was to be constituted through
constituency based elections on the lines of the House of Commons in the
British Parliament and the House of Representatives in the U.S. Congress, the
Senate accorded equivalent representation to designated regions rather than the
existing provinces. The number of senators from each state has consequently
varied with changes in the confederation. However, the Canadian senators are
appointed by the Governor-General in consultation with the Executive and hence
the Canadian senate has structurally been subservient to the House of Commons
and consequently also to the Federal executive to an extent. This system of
appointment of senators was preferred over an electoral system owing to
unfavourable experiences with elected 'Second Chambers' like the Legislative
Councils in Ontario and Quebec, prior to the formation
of the Confederation in 1867.
Another compelling factor behind the designing
of a weak senate was the then recent example of the United States where some quarters saw
the Civil war as a direct consequence of allowing too much power to the states.
However, the role of the Canadian senate has been widely criticized owning to
it's method of composition.
The genesis of the Indian Rajya Sabha on the
other hand benefited from the constitutional history of several nations which
allowed the Constituent assembly to examine the federal functions of an Upper
House. However, 'bicameralism' had been introduced to the provincial
legislatures under British rule in 1921. The Government of India Act, 1935 also
created an Upper House in the Federal legislature, whose members were to be
elected by the members of provincial legislatures and in case of Princely
states to be nominated by the rulers of such territories. However, on account
of the realities faced by the young Indian union, a Council of States (Rajya
Sabha) in the Union Parliament was seen as an essential requirement for a
federal order. Besides the former British provinces, there were vast areas of
princely states that had to be administered under the Union. Furthermore, the
diversity in economic and cultural factors between regions also posed a
challenge for the newly independent country. Hence, the Upper House was
instituted by the Constitution framers which would substantially consist of
members elected by state legislatures and have a fixed number of nominated
members representing non-political fields. However, the distribution of
representation between states in the Rajya Sabha is neither equal nor entirely
based on population distribution. A basic formula is used to assign relatively
more weightage to smaller states but larger states are accorded weightage
regressively for additional population. Hence the Rajya Sabha incorporates
unequal representation for states but with proportionally more representation
given to smaller states. The theory behind such allocation of seats is to
safeguard the interests of the smaller states but at the same time giving
adequate representation to the lager states so that the will of the
representatives of a minority of the electorate does not prevail over that of a
majority.
In India, Article 80 of the Constitution of India
prescribes the composition of the Rajya Sabha. The maximum strength of the
house is 250 members, out of which up to 238 members are the elected
representatives of the states and the Union territories [Article 80(1) (b)],
and 12 members are nominated by the President as representatives of
non-political fields like literature, science, art and social services
[Articles 80(1)(a) and 80(3)]. The members from the states are elected by the
elected members of the respective State legislative assemblies as per the
system of Proportional representation by means of the single transferable vote
[Article 80(4)]. The manner of election for representatives from Union
territories has been left to prescription by parliament [Article 80(5)]. The
allocation of seats for the various states and union territories of the Indian
Union is enumerated in the Fourth schedule to the constitution, which is read
with Articles 4(1) and 80(2). This allocation has obviously varied with the admission
and re- organisation of States.
Under Article 83(1), the Rajya Sabha is a
permanent body with members being elected for 6 year terms and 1/3rd of the
members retiring every 2 years. These 'staggered terms' also lead to a
consequence where the membership of the Rajya Sabha may not reflect the
political equations present in the Lok Sabha at the same time. The Rajya Sabha
cannot be dissolved and the qualifications for its membership are citizenship
of India and an age requisite of
30 years [Article 84]. As per Article 89, the Vice-president of India is the
Ex- officio Chairman of the Rajya Sabha and the House is bound to elect a
Deputy Chairman. Articles 90, 91, 92 and 93 further elaborate upon the powers
of these functionaries.
The American Senate on the other hand accords
equal representation to all 50 states, irrespective of varying areas and
populations. Under Article 1, section 3 of the U.S. Constitution, two senators
are elected from every state by an open franchise, and hence the total
membership of the Senate stands at 100. It is generally perceived in American
society that the office of a senator commands more prestige than that of a
member in the House of Representatives. As has been stated before, Senators
were chosen by members of the respective State legislatures before the 17th
amendment of 1913 by which the system of open franchise was introduced.
The candidates seeking election to the Senate
have to be more than 30 years old and should have been citizens of the U.S.A. for more than 9 years
and also should have legal residence in the state they are seeking election
from. Senators are elected for 6 year terms, with 1/3rd of the members either
retiring or seeking re-election every 2 years. Senators can run for re-
election an unlimited number of times. The Vice President of the U.S.A. serves as the presiding
officer of the Senate, who has a right to vote on matters only in case of a
deadlock.
However, for all practical purposes the
presiding function is performed by a President Pro Tempore (Temporary presiding
officer), who is usually the senator from the majority party with the longest
continuous service. The floor leaders of the majority and minority parties are
chosen at separate meetings for both parties (known as Caucus/conference) that are
held before each new session of Congress. The Democratic and Republican parties
also choose their respective Whips and Policy committees in the Caucus.
The Senate in the Canadian Parliament, is
however not an elected body. As indicated earlier, the Senators are appointed
by the Governor-General on the advice of the Prime Minister. The membership of
the house as of today is 105 and it accords equivalent representation to
designated regions and not necessarily the constituent provinces and
territories. The Prime Minister's decision regarding appointment of senators
does not require the approval of anyone else and is not subject to review. The
qualifications for membership are an age requirement of 30 years, citizenship
of the Dominion of Canada by natural birth or naturalization and residency
within the province from where appointment is sought. In the case of Quebec, appointees must be
residents of the electoral district for which they are appointed. Once
appointed, senators hold office until the age of 75 unless they miss two
consecutive sessions of Parliament. Until 1965, they used to hold office for
life. Even though the Canadian senate is seen as entirely dependent on the
Executive owing to party affiliations in appointments, the provision for
holding terms till the age of 75 does theoretically allow for the possibility
of the Opposition to command a majority in the Senate and thereby disagree with
the Lower House or the executive, since the members of the Lower House are
elected for 5 year terms.
Now that a general idea has been gained on the
methods of composition of the Second Chambers in India, U.S.A. and Canada, one can analyse the varying degree of
representation accorded to constituent states in the three systems before
proceeding to compare the policy scope as well as the practical and
extra-legislative powers accorded to these chambers.
The idea of equal representation for states in
the Senate was built into the American Constitution. The 17th amendment can
hence be considered a reform in so far as it threw the election of senators
open to the general public.
However, the weightage accorded to each vote
across states is inversely proportional to the population of the concerned
state.
Hence, actual representation per vote in the U.S. senate is higher for
smaller states and likewise much lower for more populous states. On a
theoretical as well as practical standpoint, this can create situations where
the representatives of the minority of the electorate can guide legislation
over those of the majority.
Canada opted for a variation of the equivalent
representation for designated regions and hence the representation accorded to
provinces and territories was loosely based on population distribution.
However, demographic changes over many decades impact the actual representation
accorded to each territory. Furthermore, the nominal system of appointment to
the Canadian Senate creates the position that the will of the Senate will
ordinarily flow with the federal executive.
The unequal yet weighed proportional
representation method adopted for Rajya Sabha elections was a consequence of
the analysis of representation in other federal bicameral legislatures. Even
though it was recognized that smaller states required safeguards in terms of
representation, it was further observed that enforcing equal representation for
states like in the U.S.A. would create immense asymmetry in the representation of equally
divided segments of the electorate.
Furthermore, the formation and re-organisation
of states in India since independence has
largely been on linguistic lines and other factors of cultural homogeneity
among groups, where the sizes of these communities vary tremendously in
comparison to each other. Hence, allocating seats to the states in the Rajya
Sabha, either on equal terms or absolutely in accordance with population
distribution would have been extreme solutions. Hence, the formula applied for
the purposes of allocation of seats in the Fourth schedule seems to be a
justifiable solution. This point can be illustrated with the trend that between
1962 and 1987, six new states were carved out of Assam. If India had followed the equal representation model,
these new states, containing barely 1% of India's population, would have had to be given 25% of
all the votes in the upper chamber. Hypothetically, the more populous states
would never have allowed this. Thus an essential feature of the working of
federalism in India i.e. the creation of new states, some of which had violent
separatist tendencies, would have been difficult under the U.S. principle of
representation for each state equally.
The Irish Constitution like the Indian
Constitution does not have strict federalism. Residence is not insisted upon
under the Irish Constitution (See Constitution of India by Basu, 6th Edn.
Vol.F). Similarly, in the case of Japanese Constitution, qualifications are
prescribed by the statute and not by the Constitution. The various
constitutions of other countries show that residence, in the matter of
qualifications, becomes a constitutional requirement only if it is so expressly
stated in the Constitution. Residence is not the essence of the structure of
the Upper House. The Upper House will not collapse if residence as an element
is removed. Therefore, it is not a prerequisite of federalism.
It can be safely said that as long as the State
has a right to be represented in the Council of States by its chosen
representatives, who are citizens of the country, it cannot be said that
federalism is affected. It cannot be said that residential requirement for
membership to the Upper House is an essential basic feature of all Federal
Constitutions. Hence, if the Indian Parliament, in its wisdom has chosen not to
require residential qualification, it would definitely not violate the basic feature
of Federalism. Our Constitution does not cease to be a federal constitution
simply because a Rajya Sabha Member does not "ordinarily reside" in
the State from which he is elected.
Whether Basic structure doctrine available to
determine validity of a statute The question arises as to whether the ground of
violation of the basic feature of the Constitution can be a ground to challenge
the validity of an Act of Parliament just as it can be a ground to challenge
the constitutional validity of a constitutional amendment. It has been
submitted on behalf of Union of India that basic structure doctrine is
inapplicable to Statutes.
Mr. Sachar was, however, at pains to submit
arguments in support of affirmative plea in this regard. He referred to Dr. D.C. Wadhwa & Ors. v.
State of Bihar & Ors. [1987 (1)
SCC 378] as an earlier case wherein the Bihar Intermediate Education Council
Ordinance, 1985 was struck down as unconstitutional and void on the basis that
it was repugnant to the constitutional scheme.
In that case Government of Bihar was found to
have "made it a settled practice to go on re-promulgating ordinances from
time to time and this was done methodologically and with a sense of
deliberateness".
Immediately at the conclusion of each session of
the State legislature, a circular letter would be sent by the Special Secretary
in the Department of Parliamentary Affairs to all the Departments intimating to
them that the session of the legislature had been got prorogued and that under
Article 213 clause (2)(a) of the Constitution all the ordinances would cease to
be in force after six weeks of the date of reassembly of the legislature and
"that they should therefore get in touch with the Law Department and
immediate action should be initiated" to get all the concerned ordinances
re-promulgated before the date of their expiry.
This Court in above fact situation held and
observed as under :-
"When the constitutional provision
stipulates that an ordinance promulgated by the Governor to meet an emergent
situation shall cease to be in operation at the expiration of six weeks from
the reassembly of the legislature and the government if it wishes the
provisions of the ordinance to be continued in force beyond the period of six
weeks has to go before the legislature which is the constitutional authority
entrusted with the law-making function, it would most certainly be a colourable
exercise of power for the government to ignore the legislature and to
repromulgate the ordinance and thus to continue to regulate the life and
liberty of the citizens through ordinance made by the executive. Such a
strategem would be repugnant to the constitutional scheme, as it would enable
the executive to transgress its constitutional limitation in the matter of
law-making in an emergent situation and to covertly and indirectly arrogate to
itself the law-making function of the legislature." Noticeably the above
view was taken about the Ordinances issued by the State of Bihar in the face of clear
violation of the express constitutional provisions.
The learned counsel next referred to L. Chandra
Kumar v. Union of India & Ors. [1997 (3) SCC 261 (7 Judges) (Paragraph 17
page 277 and Paragraph 99 at p.311)], in which case not only was the
Constitutional amendment depriving High Court of its jurisdiction under Article
226 and 227 (from decisions of Administrative Tribunal) struck down on the
ground that taking away judicial review from the High Courts violated the basic
structure doctrine but even Section 28 of the Administrative Tribunal Act 1985,
providing for "exclusion of jurisdiction of Courts except the Supreme
Court under Article 136 of Constitution" was also struck down.
In the above context, reference has also been
made to Indra Sawhney v. Union of India & Ors. [2000 (1) SCC 168 at page 202
(Paragraph 65)]. A Bench of 3 Judges of this Court expressly held in that case
that a State enacted law (Kerala Act on creamy layer) violated the doctrine of
basic structure. The question before the Court essentially was as to whether
the right to equality guaranteed by the Constitution and the law declared by
the Supreme Court could be set at naught by a legislative enactment. The issues
raised also concerned the legislative competence of the State Legislature.
In paragraph 65 of the judgment, it was observed
as under:-
".Parliament and the legislature in this
country cannot transgress the basic feature of the Constitution, namely, the
principle of equality enshrined in Article 14 of which Article 16(1) is a
facet.
Whether the creamy layer is not excluded or
whether forward castes get included in the list of backward classes, the
position will be the same, namely, that there will be a breach not only of
Article 14 but of the basic structure of the Constitution.
The non-exclusion of the creamy layer or the
inclusion of forward castes in the list of backward classes will, therefore, be
totally illegal. Such an illegality offending the root of the Constitution of
India cannot be allowed to be perpetuated even by constitutional amendment. The
Kerala Legislature is, therefore, least competent to perpetuate such an illegal
discrimination. What even Parliament cannot do, the Kerala Legislature cannot
achieve." It is well settled that legislation can be declared invalid or
unconstitutional only on two grounds namely,
-
lack
of legislative competence and
-
violation
of any fundamental rights or any provision of the Constitution (See Smt.
Indira Nehru Gandhi v. Raj Narain, [1975 Supp SCC 1] ). In other cases relied
upon by Mr. Sachar where observations have been made about a statute being
contrary to basic structure, the question was neither raised nor considered
that basic structure principle for invalidation is available only for
constitutional amendments and not for statutes.
A.N. Ray, CJ, in Indira Nehru Gandhi's case
(supra), observed in paragraph 132 as under: -
"The contentions on behalf of the
respondent that ordinary legislative measures are subject like Constitution
Amendments to the restrictions of not damaging or destroying basic structure,
or basic features are utterly unsound. It has to be appreciated at the
threshold that the contention that legislative measures are subject to
restrictions of the theory of basic structures or basic features is to equate
legislative measures with Constitution Amendment.
(emphasis supplied)" In paragraph 153 of
his judgment, he ruled as under: -
"The contentions of the respondent that the
Amendment Acts of 1974 and 1975 are subject to basic features or basic
structure or basic framework fails on two grounds. First, legislative measures
are not subject to the theory of basic features or basic structure or basic
framework.
Second, the majority view in Kesavananda
Bharati's case (supra) is that the Twenty-ninth Amendment which put the two
statutes in the Ninth Schedule and Article 31-B is not open to challenge on the
ground of either damage to or destruction of basic features, basic structure or
basic framework or on the ground of violation of fundamental rights."
(emphasis supplied) In same case, K.K. Mathew, J. in Paragraph 345 of his
separate judgment ruled as under: -
"I think the inhibition to destroy or
damage the basic structure by an amendment of the Constitution flows from the
limitation on the power of amendment under Article 368 read into it by the
majority in Bharati's case (supra) because of their assumption that there are
certain fundamental features in the Constitution which its makers intended to
remain there in perpetuity. But I do not find any such inhibition so far as the
power of Parliament or State Legislatures to pass laws is concerned. Articles
245 and 246 give the power and also provide the limitation upon the power of
these organs to pass laws. It is only the specific provisions enacted in the
Constitution which could operate as limitation upon that power. The preamble,
though a part of the Constitution, is neither a source of power nor a
limitation upon that power.
The preamble sets out the ideological
aspirations of the people. The essential features of the great concepts set out
in the preamble are delineated in the various provisions of the Constitution.
It is these specific provisions in the body of the Constitution which determine
the type of democracy which the founders of that instrument established; the
quality and nature of justice, political, social and economic which was their
desideratum, the content of liberty of thought and expression which they
entrenched in that document, the scope of equality of status and of opportunity
which they enshrined in it. These specific provisions enacted in the
Constitution alone can determine the basic structure of the Constitution as
established. These specific provisions, either separately or in combination
determine the content of the great concepts set out in the preamble. It is
impossible to spin out any concrete concept of basic structure out of the
gossamer concepts set out in the preamble. The specific provisions of the
Constitution are the stuff from which the basic structure has to be woven. The
argument of Counsel for the respondent proceeded on the assumption that there
are certain norms for free and fair election in an ideal democracy and the law
laid down by Parliament or State Legislatures must be tested on those norms
and, if found wanting, must be struck down. The norms of election set out by
Parliament or State Legislatures tested in the light of the provisions of the
Constitution or necessary implications therefrom constitute the law of the
land.
That law cannot be subject to any other test,
like the test of free and fair election in an ideal democracy." (emphasis
supplied) In Paragraph 356, he proceeded to rule as under: -
"There is no support from the majority in
Bharati's case (supra) for the proposition advanced by Counsel that an ordinary
law, if it damages or destroys basic structure should be held bad or for the
proposition that a constitutional amendment putting an Act in the Ninth
Schedule would make the provisions of the Act vulnerable for the reason that
they damage or destroy a basic structure constituted not by the fundamental
rights taken away or abridged but some other basic structure. And, in
principle, I see no reason for accepting the correctness of the
proposition." (emphasis supplied) In same case, Chandrachud, J. in
Paragraph 691 of his separate judgment ruled as under: -
"Ordinary laws have to answer two tests for
their validity:
-
The law must be within
the legislative competence of the legislature as defined and specified in
Chapter I, Part XI of the Constitution, and
-
it must not offend
against the provisions of Article 13(1) and (2) of the Constitution.
"Basic structure", by the majority judgment, is not a part of the
fundamental rights nor indeed a provision of the Constitution. The theory of
basic structure is woven out of the conspectus of the Constitution and the
amending power is subjected to it because it is a constituent power. "The
power to amend the fundamental instrument cannot carry with it the power to
destroy its essential features this, in brief, is the arch of the theory of
basic structure. It is wholly out of place in matters relating to the validity
of ordinary laws made under the Constitution.
"(emphasis supplied) In Paragraph 692, he
would rule as under: -
"There is no paradox, because certain
limitations operate upon the higher power for the reason that it is a higher
power. A constitutional amendment has to be passed by a special majority and
certain such amendments have to be ratified by the legislatures of not less
than one-half of the States as provided by Article 368(2). An ordinary legislation
can be passed by a simple majority. The two powers, though species of the same
genus, operate in different fields and are therefore subject to different
limitations." (emphasis supplied) A Constitution Bench (7 Judges) in State
of Karnataka v. Union of India & Anr.
[(1977) 4 SCC 608] held, per majority, (paragraph 120) as under:-
" in every case where reliance is placed
upon it, in the course of an attack upon legislation, whether ordinary or
constituent (in the sense that it is an amendment of the Constitution), what is
put forward as part of "a basic structure" must be justified by
references to the express provisions of the Constitution" In Paragraph
197, it was observed as under: -
".if a law is within the legislative
competence of the Legislature, it cannot be invalidated on the supposed ground
that it has added something to, or has supplemented, a constitutional provision
so long as the addition or supplementation is not inconsistent with any
provision of the Constitution." The following observations in Paragraph
238 of same judgment are also germane to the issue: -
"Mr. Sinha also contended that an ordinary
law cannot go against the basic scheme or the fundamental backbone of the
Centre-State relationship as enshrined in the Constitution. He put his argument
in this respect in a very ingenious way because he felt difficulty in placing
it in a direct manner by saying that an ordinary law cannot violate the basic
structure of the Constitution. In the case of Smt Indira Nehru Gandhi v. Shri Raj
Narain such an argument was expressedly rejected by this Court.." The
doctrine of 'Basic Feature' in the context of our Constitution, thus, does not
apply to ordinary legislation which has only a dual criteria to meet, namely:
-
It
should relate to a matter within its competence;
-
It
should not be void under Article 13 as being an unreasonable restriction on a
fundamental right or as being repugnant to an express constitutional
prohibition.
Reference can also be made in this respect to
Public Services Tribunal Bar Association v. State of U.P. & Anr. [2003 (4)
SCC 104] and State of Andhra Pradesh and Ors. V. McDowell & Company & Ors. [1996(3) SCC
709].
The basic structure theory imposes limitation on
the power of the Parliament to amend the Constitution. An amendment to the
Constitution under Article 368 could be challenged on the ground of violation
of the basic structure of the Constitution. An ordinary legislation cannot be
so challenged. The challenge to a law made, within its legislative competence, by
Parliament on the ground of violation of the basic structure of the
Constitution is thus not available to the petitioners.
As stated above, 'residence' is not the
constitutional requirement and, therefore, the question of violation of basic
structure does not arise.
Argument of contemporary legislation &
Constitutional Scheme Mr. Nariman further submitted that the Constitution and
the Representation of People Act, 1951 are to be read as an "integral
scheme". In this context, reference was made to the fact that the
Provisional Parliament that passed the Representation of People Act, 1950 and
the Representation of People Act, 1951 was the same as the Constituent body
that had passed and adopted the Constitution.
In support of the contention about the integrated
scheme of 'Election', Mr. Nariman would first refer to N.P. Ponnuswami v.
Returning Officer, Namakkal Constituency & Ors. [AIR 1952 SC 64:1952 SCR
218]. In that case, the appellant had challenged the dismissal by the High
Court of his petition under Article 226 of the Constitution praying for a writ
of certiorari to quash the order of the Returning Officer rejecting his
nomination paper in an election, on the ground that it had no jurisdiction to
interfere with the order of the Returning Officer by reason of the provisions
of Article 329(b) of the Constitution.
Justice Fazal Ali, speaking for the Bench,
observed as under:
"Broadly speaking, before an election
machinery can be brought into operation, there are three requisites which
require to be attended to, namely,
-
there should be a set of
laws and rules making provisions with respect to all matters relating to, or in
connection with, elections, and it should be decided as to how these laws and
rules are to be made;
-
there should be an
executive charged with the duty of securing the due conduct of elections; and
-
there should be a
judicial tribunal to deal with disputes arising out of or in connection with
elections.
Articles 327 and 328 deal with the first of
these requisites, Article 324 with the second and Article 329 with the third
requisite. .. Part XV of the Constitution is really a code in itself providing
the entire ground-work for enacting appropriate laws and setting up suitable
machinery for the conduct of elections.
"The Representation of the People Act,
1951, which was passed by Parliament under Article 327 of the Constitution,
makes detailed provisions in regard to all matters and all stages connected
with elections to the various legislatures in this country.
"The fallacy of the argument lies in
treating a single step taken in furtherance of an election as equivalent to
election. The decision of this appeal however turns not on the construction of
the single word "election", but on the construction of the
compendious expression "no election shall be called in question" in
its context and setting, with due regard to the scheme of Part XV of the
Constitution and the Representation of the People Act, 1951.
Evidently, the argument has no bearing on this
method of approach to the question posed in this appeal, which appears to me to
be the only correct method." (Emphasis supplied) In Mohinder Singh Gill
& Anr. v. The Chief Election Commissioner, New Delhi & Ors. [1978 (1)
SCC 405 (427)], a similar view was taken in the following words: - "The
paramount policy of the Constitution-framers in declaring that no election
shall be called in question except the way it is provided for in Article 329(b)
and the Representation of the People Act, 1951, compels us to read, as Fazal
Ali J. did in Ponnuswami, the Constitution and the Act together as an integral
scheme.
The reason for postponement of election
litigation to the post-election stage is that elections shall not unduly be
protracted or obstructed. The speed and promptitude in getting due representation
for the electors in the legislative bodies is the real reason suggested in the
course of judgment.
-
Article 324, which we
have set out earlier, is a plenary provision vesting the whole responsibility
for national and State elections and, therefore, the necessary power to
discharge that function. It is true that Article 324 has to be read in the
light of the constitutional scheme and the 1950 Act and the 1951 Act." The
above view was reiterated by the Constitution Bench in Gujarat Assembly Election
case [2002 (8) SCC 237]. By reading the Constitution and the Representation of
People Act together as constituting a scheme, it was observed as under: -
-
"Neither, under the
Constitution nor under the Representation of the People Act, any period of limitation
has been prescribed for holding election for constituting Legislative Assembly
after premature dissolution of the existing one.
However, in view of the scheme of the
Constitution and the Representation of the People Act, the elections should be
held within six months for constituting Legislative Assembly from the date of
dissolution of the Legislative Assembly." Mr. Nariman submitted that the
same Parliamentary body which passed the Constitution, acting as the
Provisional Parliament under Article 379 (since repealed), also passed the law
with regard to who was to be the representative of a State in the Council of
States. He pointed out that Section 3 of the RP Act 1951, as originally
enacted, while prescribing "Qualifications for membership of the Council
of States" had made it essential that the person offering himself to be
chosen as a representative of any State in the Council of States must be
"an elector" for a Parliamentary Constituency "in that
State", which principle applied uniformly to Part A or Part B States
(other than the State of Jammu & Kashmir). In the original enactment, there
was a separate arrangement for Part C States, some of which were put in
different groups to provide for unified constituencies for returning a common
representative (for the State or the Group) to the Council of States, though
the qualification in the nature of compulsory status of elector "in that
State" would apply there also, with some modification here and there, in
that, generally the person was required to be "an elector for a
Parliamentary constituency in that State or in any of the States in that group,
as the case may be". In the case of the States of Ajmer and Coorg or of
the States of Manipur and Tripura, which formed two separate groups for the
purpose in the Council of States, the arrangement was to rotate the seats and
so it was essential for the candidate to be "an elector for any
Parliamentary constituency in the State in which the election of such
representative is to be held".
Mr. P.P. Rao, Senior Advocate appearing for the
State of Tamil Nadu had a similar take on the subject and pressed in aid the
principle of 'contemporanea expositio'. His submission was that this principle
is relevant for interpreting the words "the representative of each State"
in Article 80(4) of the Constitution. His argument was that the RP Acts 1950
and 1951 are contemporaneous legislations made by the Constituent Assembly
itself acting as provisional Parliament and that they are a useful aid for the
interpretation of Articles 79 and 80, just as subordinate legislation is for
interpreting an Act.
In the above context, Mr. Rao referred to
various decisions. He would urge that the following words, extracted from
Paragraph 236 in I.C. Golak Nath & Ors. v. State of Punjab & Anr. [(1967) 2
SCR 762] be borne mind:
"The best exposition of the Constitution is
that which it has received from contemporaneous judicial decisions and
enactments. We find a rare unanimity of view among judges and legislators from
the very commencement of the Constitution that the fundamental rights are
within the reach of the amending power. No one in the Parliament doubted this
proposition when the Constitution First Amendment Act of 1951 was passed. It is
remarkable that most of the members of this Parliament were also members of the
Constituent Assembly." (emphasis supplied) He would then refer to Hanlon
v. The Law Society [(1980) 2 All ER 199, 218 (H.L.)], it was held as under:
"A study of the cases and of the leading
textbooks (Craies on Statute Law (7th Edn., 1971, p. 158), Maxwell on the
Interpretation of Statutes (12th Edn., 1969, pp 74-75) Halsbury's Laws (3rd
Edn.) (1961) Vol.36, paragraph 606, p. 401) appears to me to warrant the
formulation of the following propositions:
-
Subordinate legislation
may be used in order to construe the parent Act, but only where power is given
to amend the act by regulations or where the meaning of the Act is ambiguous.
-
Regulations made under
the Act provide a parliamentary or administrative contemporanea expositio of
the Act but do not decide or control its meaning to allow this would be to
substitute the rule-making authority or the judges as interpreter and would
disregard the possibility that the regulation relied on was misconceived or
ultra vires.
-
Regulations which are
consistent with a certain interpretation of the Act tend to confirm that
interpretation.
-
Where the Act provides a
framework built on by contemporaneously prepared regulations, the latter may be
a reliable guide o the meaning of the former.
-
The regulations are a
clear guide, and may be decisive, when they are made in pursuance of a power to
modify the Act, particularly if they come into operation on the same day as the
Act which they modify.
-
Clear guidance may also
be obtained from regulations which are to have effect as if enacted in the
parent Act."
Mr. Rao also placed reliance on British
Amusements Catering Trades Association v. Westminister City Council [(1988) 1
ALL ER 740, 745 d.e. (H.L.)], a judgment that is said to have followed the case
referred to in the preceding Paragraph.
In Desh Bandhu Gupta And Co. & Ors. v. Delhi
Stock Exchange Association Ltd. [(1979) 4 SCC 565], this court held as under:
"The principle of contemporanea expositio
(interpreting a statute or any other document by reference to the exposition it
has received from contemporary authority) can be invoked though the same will
not always be decisive of the question of construction (Maxwell 12th ed.
P. 268). In Crawford on Statutory Construction
(1940 ed.) in paragraph 219 (at pp. 393-395) it has been stated that
administrative construction (i.e. contemporaneous construction placed by
administrative or executive officers charged with executing a statute)
generally should be clearly wrong before it is overturned; such a construction,
commonly referred to as practical construction, although not controlling, is
nevertheless entitled to considerable weight; it is highly persuasive. In
Baleshwar Bagarti v. Bhagirathi Dass ILR 35 Cal. 701 at 713 the principle,
which was reiterated in Mathura Mohan Saha v. Ram Kumar Saha ILR 43 Cal. 790 : AIR 1916 Cal 136 has been stated by
Mookerjee, J., thus:
It is well-settled principle of interpretation
that courts in construing a statute will give much weight to the interpretation
put upon it, at the time of its enactment and since, by those whose duty it has
been to construe, execute and apply it I do not suggest for a moment that such
interpretation has by any means a controlling effect upon the courts; such
interpretation may, if occasion arises, have to be disregarded for cogent and
persuasive reasons, and in a clear case of error, a court would without
hesitation refuse to follow such construction." The State of U.P. & Ors. v. Babu Ram
Upadhya [(1961) 2 SCR 679(CB)], it was observed as under:
"Rules made under a statute must be treated
for all purposes of construction or obligation exactly as if they were in the
Act and are to be of the same effect as if contained in the Act, and are to be
judicially noticed for all purposes of construction or obligation: see Maxwell
"On the Interpretation of Statutes", 10th edn., pp. 50-51." In
State of Tamil Nadu v. M/s. Hind Stone
& Ors. [(1981) 2 SCC 205], it was held as under:
"The Mines and Minerals (Regulation and
Development) Act is a law enacted by Parliament and declared by Parliament to
be expedient in the public interest. Rule 8-C has been made by the State
Government by notification in the official Gazette, pursuant to the power
conferred upon it by Section 15 of the Act. A Statutory rule, while ever
subordinate to the parent statute, is otherwise, to be treated as part of the
statute and as effective. "Rules made under the statute must be treated
for all purposes of construction or obligation exactly as if they were in the
act and are to be of the same effect as if contained in the Act and are to be,
judicially noticed for all purposes of construction or obligation":
(State of U.P. v. Babu Ram Upadhya (1961) 2 SCR 679, 702; see
also Maxwell: INTERPRETATION OF STATUTES, 11th Edn. Pp. 49-50). So, statutory
rules made pursuant to the power entrusted by Parliament are law made by
Parliament within the meaning of Article 302 of the Constitution." In
Commissioner of Income Tax, Jullundur v. Ajanta Electricals, Punjab [(1995) 4 SCC 182], it was ruled thus:
"Though the rule cannot affect, control or
derogate from the section of the Act, so long as it does not have that effect,
it has to be regarded as having the same force as the section of the Act."
The submission, thus, is that the principle of contemporanea expositio is
relevant for interpreting the words "the representatives of each
State" in Article 80(4) of the Constitution with reference to contemporary
legislation made by the Constituent Assembly itself acting as provisional Parliament
just as subordinate legislation is used in order to construe the parent Act.
But then, the fallacy of the above approach to
the subject lies in the fact that legislation by the provisional Parliament did
not produce a constitutional rule. It does not have the sanctity or normative
value of Constitutional Law. When the Act of 1951 was debated, no one argued
that the residence qualification had already been decided upon by the
Constituent Assembly and, therefore, no debate should take place. The
difference between the original and derived power is the basis of the doctrine
of basic structure.
The principle of "contemporanea expositio',
is totally irrelevant if not misleading for present purposes. If the
Constitution had used an ambiguous expression, which called for interpretation,
the manner in which the Constitution had been interpreted soon after it was
enacted would be a useful aid to interpretation. No such question arises in
this case.
Indeed, the Parliament had earlier provided for
residential qualification. But it decided to repeal it through the impugned
amendment. Both times, that is while originally enacting the RP Act in 1951 and
the while amending it in 2003, the Parliament was acting within its legislative
competence. It is true that the provisional Parliament in 1951 did prescribe
residence inside the State as a qualification for Membership of the Council of
States. But, it also needs to be borne in mind that the same Parliament in its
character of a Constituent Assembly had refused to exalt the qualification
(including that of residence) to a Constitutional requirement and rather showed
consciousness that the provision for qualifications might need to be revisited
from time to time and, therefore, finding it inadvisable to prescribe the same
in the Constitution itself.
The provision of residence existed, prior to
impugned amendment, in a Parliamentary law, i.e., the Representation of the
People Act, 1951 (and not the Constitution). There is no express provision in
the Constitution itself requiring residence as a qualification. It cannot be
said that amendment of the Act to remove what the Constitution itself did not
provide for, is unconstitutional.
It has been argued that it was the Provisional
Parliament, which succeeded the Constituent Assembly, that had passed the RP
Act, 1951. However, if that reasoning were to be accepted, it would not mean
that all the laws passed by the Provisional Parliament enjoy the same status as
the Constitution or some such special status. This would be neither a healthy nor
a permissible approach. All enactments passed by provisional Parliament,
including the RP Act 1951, are laws like any other law made by Parliament.
Accordingly, each of them is subject to power of Parliament to bring about
amendments like any other statute. Over the years, there have been several
amendments to the RP Act, 1950 and RP Act, 1951. If the argument of the
petitioner were to be correct, all the amendments made so far in these Acts
would have required Constitutional amendments.
While there need be no quarrel with the
proposition that the Constitution and the RP Acts form an integrated scheme of
elections, it does not follow that on this account the domiciliary requirement
in Section 3 RP Act 1951, as originally enacted, is part of the said scheme so
as to be treated a constitutional requirement.
Restrictions under Article 368 It has been
submitted that Section 3 of RP Act, 1951, as it stood before amendment, read
with Article 80(4), had ensured the "representation of States" in
Parliament. Referring to proviso (d) in Article 368 (2), it has been argued
that even a Constitutional amendment making any change in representation of
States in Parliament cannot be effectuated without the ratification by one half
of the States Legislatures.
On this premise, it has been submitted that it
should follow, as a necessary corollary, that the change made in Section 3, RP
Act, 1951 is one that no longer ensures, by Parliamentary law, the
representation of States in Parliament, or in any case one that makes a change
in the existing law, and thus an amendment that could not be effectuated simply
by amending Section 3 of the RP Act, 1951.
Article 368 relates to power of Parliament to
amend the Constitution and the procedure therefor. The Proviso in question puts
limits on the power of Parliament to amend the Constitution. Article 368 (2),
to the extent relevant, reads as under: - "An amendment of the
Constitution may be initiated only by the introduction of a Bill for the
purpose in either House of Parliament, and when the Bill is passed in each
House by a majority of the total membership of that House and by a majority of
not less than two-thirds of the members of that House present and voting, it
shall be presented to the President who shall give his assent to the Bill and
thereupon the Constitution shall stand amended in accordance with the terms of
the Bill:
Provided that if such amendment seeks to make
any change in (a) xxxx (b) xxxx (c) xxxx (d) the representation of States in
Parliament, or (e) xxxx, the amendment shall also require to be ratified by the
Legislatures of not less than one-half of the States by resolution to that
effect passed by those Legislatures before the Bill making provision for such
amendment is presented to the President for assent." The above provision
shows that subject to some conditions and procedural requirements, the
Parliament is competent to amend the Constitution except, inter alia, in the
event the amendment sought to be made, changes "the representation of
States in Parliament". In that case, the amendment Bill would require,
before presentation to the President for assent, ratification by the
Legislatures of not less than one half of "the States". A question
thus has been raised as to the scope of the expression "representation of
the States" occurring in Proviso (d) to Article 368 (2).
The argument is without merit in the context in
which it has been made. The expression "representatives of States" as
used in Article 80 and the expression "representation of States" as
used in proviso (d) of Article 368(2) are not synonymous or employed in same
sense. These expressions are materially different and used in different context
in the two provisions. This is clear from the simple fact that Article 80 is
talking of "representatives" of States in the Council of States while
proviso (d) of Article 368 (2) pertains to "representation" of States
in Parliament. The first provision is of limited import while the latter has a
wider connotation.
Article 1, having declared in its sub-Article (1)
that India "shall be a Union
of States", provides through sub-Article (2) as under:- "The States
and the territories thereof shall be as specified in the First Schedule."
The First Schedule mentions the names of the States and Union Territories and specifies their
respective territories.
Article 2 empowers the Parliament to admit, by law into
the Union of India, or to establish new States. Article 3 empowers Parliament,
by law, inter alia, to "form a new State", "increase the area of
any State", "diminish the area of any State" or "alter the
name of any State". This power has been used many a time by Parliament to
reorganize the States and their territories. Article 4 is of great relevance
for purposes at hand.
It reads as under: - "Laws made under articles
2 and 3 to provide for the amendment of the First and the Fourth Schedules and
supplemental, incidental and consequential matters.-
-
Any law referred to in
article 2 or article 3 shall contain such provisions for the amendment of the
First Schedule and the Fourth schedule as may be necessary to give effect to
the provisions of the law and may also contain such supplemental, incidental
and consequential provisions (including provisions as to representation in
Parliament and in the Legislature or Legislatures of the State or States
affected by such law) as Parliament may deem necessary.
-
No such law as aforesaid
shall be deemed to be an amendment of the Constitution for the purposes of
article 368." Article 4 thus also uses the expression "representation
in Parliament". It specifically excludes such amendments as contemplated
in Articles 2 and 3 from the requirements of the procedure prescribed in
Article 368 for Constitutional amendments. The expression "representation
of States in Parliament", as used in Proviso (d) to Article 368 (2),
therefore, cannot be of any use to the case of the petitioners.
Article 80 (1) prescribes in clause (b) that,
besides the 12 members nominated by the President, the Council of States shall
consist of not more than 238 "representatives" of States and Union Territories. If an amendment were
to increase or decrease this composition, it would result in change in the
ratio of representation of States in Parliament.
The provision contained in Article 80 (1) (b),
in so far as it pertained to the maximum number of members constituting the
House has remained unchanged ever since it was adopted in the Constitution by
the Constituent Assembly on 26th November, 1949. But this figure of seats of the
representatives of States (and Union Territories) was subject to allocation to the States and Union Territories in terms of the Fourth
Schedule, as provided in
Article 80 (2). The Fourth Schedule provided for
the allocation of seats in the Council of States and the total number of seats
indicated therein has varied from time to time, subject to the ceiling of 238,
as given in Article 80 (1) (b).
In the Fourth Schedule, as originally enacted,
the seats allocated to States were 205. By way of the Constitution (Seventh
Amendment) Act, 1956, which came into effect on 1st November, 1956, the Fourth Schedule
was substituted and consequently, the total number of seats allocated in the
Council of States was increased to 220, also indicating the distribution
thereof among the various States. This figure of "220" was
periodically increased by the Constitution (Thirty Sixth Amendment) Act, 1975
and various States Reorganisation Acts passed by the Parliament from time to
time, lastly by the Goa, Daman and Diu Reorganisation Act, 1987 which came into
effect on 30 May 1987, whereby State of Goa was inserted into the Fourth
Schedule and the figure 'increased to '233'. The figure "233" occurs
in the Fourth Schedule as on date.
It has been submitted that every time there has
been reorganization of States, the consequential amendments in the Fourth
Schedule have been brought about through Constitutional amendments, in accord
with the provisions contained in Article 368, in particular Proviso (d)
thereof. It has been pointed out that even the existing representatives of the
States affected by the reorganization were reflected by name in the
Constitutional amendments and allocated to the States, having regard to their
respective domicile.
The argument based on the provision of the Acts
relating to Reorganization of States does not carry the matter further at all.
Obviously, at the time of creation of new States, the existing members of the
Council of States had to be allocated to the old or new States. This was done
in conformity with the then existing principles underlying the relevant law.
The documents placed before the Court show that specific consideration of a
residential requirement was never made after Paragraph 6 of the Fourth Schedule
in the first draft Constitution dated 27th October 1947 had been deleted on 11th February 1948.
The amendment of the Constitution can affect
"representation of the States" in Parliament, within the meaning of
the proviso extracted above, in more ways than one which we will presently
show.
Article 80 (4) prescribes the manner of voting and
election of the representatives of States for Council of States in the
following terms: -
"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." If the
above-mentioned prescribed manner of voting and election is sought to be
changed, for example, by including members of Legislative Councils in such States
as have legislative Councils or by change in the system of proportional
representation, that would also have the effect of changing the representation
of the States.
Article 83 (1) provides as under: -
"The Council of States shall not be subject
to dissolution, but as nearly as possible one-third of the members thereof
shall retire as soon as may be on the expiration of every second year in
accordance with the provisions made in that behalf by Parliament by law."
If the duration of Council of States as provided in Article 83(1) is sought to
be changed such amendment would also affect the representation of the States.
Fourth Schedule to the Constitution lays down
the number of persons who would represent each State in the Council of States.
This balance between the various States is not at all affected by way of the
legislation impugned in the writ petitions at hand. In the instant case, the
amendments made by the impugned Act relates only to the residential
qualification of the 'representatives' and is not concerned with the
"representation of the States" in Parliament.
The argument that the impugned amendment affects
the "representation" of the States in the Council of States is not
correct. The States still elect their representatives to the Council of States
through the elected members of their respective legislative assemblies as
provided in the Constitution. There was, therefore, no need for a
constitutional amendment as has been contended.
Distinction between the two Houses Mr. Nariman,
learned Senior Advocate pointed out that under un-amended Section 3 of the RP
Act 1951, one of the requisite qualifications for a person offering his
candidature for membership to the Council of States, since beginning had been
that he must be "an elector" for a Parliamentary Constituency in the
State or Union Territory which he seeks to represent. On the other hand, as per
Section 4 of the RP act 1951, in the case of the House of the People, a person
is qualified to be chosen to fill a seat in that House if he is "an
elector for any Parliamentary constituency"; that is to say, one can get
elected as people's representative in the House of the People for a
constituency in one particular State even though one is an elector registered
as such in a Parliamentary constituency in another State.
He pointed out that the composition of the House
of the People, as per Article 81(1)(a), is different, since it consists of
"members chosen by direct election from territorial constituencies in the
States", such members not representing, nor expected to represent, the
States from which they are so chosen. This is why the 'Qualifications for the
membership of the House of the People', as prescribed in Section 4 of the RP
Act 1951, have always permitted "an elector for any Parliamentary
constituency" to get chosen to fill a seat in the House of the People.
The argument is that by the impugned amendment
in Section 3, the qualification for Membership of the Council of States is now
"equated" with that of the House of the People, the only difference
remaining being the manner of election, the former by indirect election and the
latter by direct election.
While Section 3 has been amended to substitute
the words "in that State or territory" with the words "in India", Section 4
remains the same as before. The result is that the point of distinction between
the characters of representation in the two Houses has become obliterated.
The word "elector" has been defined in
Section 2 (e) of RP Act 1951 and means "a person whose name is entered in
the electoral roll of that constituency for the time being in force" and
who is not subject to any of the disqualifications mentioned in Section 16 of
the RP Act, 1950.
The above mentioned statutory provisions,
according to Mr. Nariman, unmistakably show that the test of "ordinary
residence" has been woven into the constitutional scheme as an essential
qualification for membership of either House of Parliament, which can be
residence anywhere in India for House of the People, but must be residence in
the State one seeks to represent in the Council of States, as required in
Section 3 of the 1951 Act as it existed till the impugned amendment brought
about a qualitative change.
Mr. Nariman contended that the impugned
amendment has destroyed the essential characteristic of the Council of States
because a person who is an elector, and so an ordinary resident, in any
constituency in India, not necessarily of the particular State can now be
chosen to be a representative of such State, only by virtue of being so elected
to the Council of States by the Members of the Legislative Assembly of such
State. According to him, the need for a Second Chamber viz.
the Council of States has become redundant, in
that it now merely duplicates the House of the People, since a person is
qualified to be chosen as a representative of any State in the Council of
States if he is an elector for a Parliamentary constituency in that State or in
any other State.
He further argued that as a result of the
impugned amendment, the person elected to the Council of States, if he is at
all "representative" of anyone, he is only a representative of the
State Assembly that elected him and not a "representative" of the
State, as he was required to be under Article 80. The intendment of the
Constitution that he should be a representative of the State is required to be
reflected in some statutory requirement as to qualification qua the person
elected and the State, be it birth, residence for some period in the past or at
present, or ordinary residence. The law enacted by Parliament had to prescribe
some connection between the person standing for election and the State that he
is to represent in the Council of States, which is now missing.
These arguments do not appeal to us. Article 79
leaves no doubt about the fact that House of the People and the Council of
States are both "Houses" of Parliament. The names given to the two
Houses are proper nouns and do not spell out any right or obligation, much less
limitations on Parliament's legislative power available to it under Article 84
(c). Parity in the matter of qualification to the extent concerning residence
of a person seeking to be elected as member of either House does not make one
House duplicate of the other. Their role, functions, powers or prerogatives,
especially in the matter of legislation, remain unchanged.
Mr. Nariman also urged that Article 80 of the
Constitution (Composition of the Council of States) be read in contrast of
Article 81 (Composition of the House of the People).
He was at pains to point out that under Article
80, the Council of States must consist of "representatives" of the
States and Union Territories and that it is only the
representatives of "each State" in the Council of States who are to
be elected by the elected Members of the Legislative Assembly of the State
[Article 80(4)]. On the other hand, under Article 81, the House of the People
consists of "members" chosen by direct election from the territorial
constituencies in the State, i.e. chosen by the electors in one of the
Parliamentary Constituencies in India.
His argument is that if the intention was that
the body called the Council of States was also to consist of members
"chosen", then Article 80 would have used the expression 'members
chosen by elected representative of State Legislative Assemblies and Union
Territories' instead of the expression "representatives of the States and
Union Territories." He proceeded to build up on the argument by submitting
that the expression "representatives of the State" in Article 80 (1)
(b) and Article 80 (2), and the expression "representatives of each
State" in Article 80 (4), are not merely tautologous or mere surplussage,
but intended to be words of critical and crucial significance.
Almost on similar lines, Mr. P.P. Rao, learned
counsel for State of Tamil Nadu, submitted that the Democratic Republic
constituted by the Constitution of India, as reflected in the expression used
in the Preamble - "We, the people of India" - means 'We the people of
the States and Union Territories' - in other words, the citizens of India,
inhabitants of the States and the Union Territories.
It has been argued that the principles
underlying "the House of the People" are evident from Articles 79 and
81. It is a House of the People of India as a whole. Its members are chosen by
direct election from territorial constituencies in the States. To become a
member one has to be an Indian first. A non-Indian cannot represent the people
of India. Only an elector in any
part of India will have the capacity
to represent the people of India.
It has been submitted, the term "the
Council of States" in Articles 79 and 80, likewise means the House that
represents the States. Each State is a territorial constituency by itself for
this House. It is argued that only a person belonging to a State will have the
capacity to represent the State in the Upper House and that a person could
claim to belong to a State only by birth, domicile or residence. On this
premise, it has been submitted that some such visible nexus between the State
and the person seeking to be its representative is a must in the scheme of the
Constitution.
It is further the argument of the learned
Counsel for the petitioners that the words "representatives of the
States" in Article 80 (1)(b) and (2) and the words "representatives
of each State in the Council of States" in Article 80(4) need to be
interpreted in such a manner that it tends to strengthen the basic structure of
the Constitution, having due regard to its federal character and the foundational
feature of democracy, namely the system of self-governance.
In above context, the Counsel would rely upon
Sub- Committee on Judicial Accountability v. UOI & Ors. [(1991) 4 SCC 699]
and P.V. Narasimha Rao V. State (CBI/ SPE) [1998 (4)
SCC 626].
In Sub-Committee on Judicial Accountability v.
Union of India (supra), this Court ruled thus:
"In interpreting the constitutional
provisions in this area the Court should adopt a construction which strengthens
the foundational features and the basic structure of the Constitution."
The following observations made in paragraph 47 in P.V. Narasimha Rao's case
(supra) have been relied upon:
"As mentioned earlier, the object of the
immunity conferred under Article 105(2) is to ensure the independence of the
individual legislators. Such independence is necessary for healthy functioning
of the system of parliamentary democracy adopted in the Constitution.
Parliamentary democracy is a part of the basic structure of the Constitution.
An interpretation of the provisions of Article 105(2) which would enable a
Member of Parliament to claim immunity from prosecution in a criminal court for
an offence of bribery in connection with anything said by him or a vote given
by him in Parliament or any committee thereof and thereby place such Members
above the law would not only be repugnant to healthy functioning of
parliamentary democracy but would also be subversive of the rule of law which
is also an essential part of the basic structure of the Constitution.
It is settled law that in interpreting the
constitutional provisions the court should adopt a construction which
strengthens the foundational features and the basic structure of the
Constitution. (See: Sub-Committee on Judicial Accountability v. Union of India (1991) 4 SCC 699 SCC at
p. 719.)" It has been argued by Mr. Nariman that it is because of the
scheme of the Constitution and the RP Act, 1951, that representation of the
States in the Council of States has to be secured and assured viz. by insisting
upon, as a qualification, some link or nexus between the person elected to the
Council of States by the State Assembly and the State which he is to represent
in the Council of States. That connection, according to him, was, and for 53
years remained a connection, by way of "ordinary residence" in the
State. Section 3 of the RP Act, 1951, fulfilled the role of not only providing
a qualification but defining who was to be the "representative of each
State" in Article 80 (4).
It has been argued that if by electing a person
as a Member of the Council of States by a particular State Assembly itself made
that person a 'representative' of that State then it was unnecessary to enact
Section 3 of the RP Act.
Therefore, according to the argument, it has to
be concluded that the Provisional Parliament (which had also drafted and
enacted the Constitution), when enacting Section 3 of the RP Act, had thought
it necessary to define the "representative of the State", with
reference to his residence "in that State".
The above mentioned argument to the extent
founded on the principle of basic structure need not detain us any further as
it is the same argument as dealt with in the context of federal structure,
albeit with a slightly different shade.
Moreover, the link factor is retained by the
impugned amendments inasmuch as the candidate for the election to the Council
of States is now required to be an elector for Parliamentary constituency.
Therefore, the linking factor is made broad based.
Article 80 shows that the Council of States
consists of 12 Members nominated by the President and 238 representatives of
the States and Union Territories. The representatives fill the seats in accordance with
Article 80 (2). Both, the members nominated by the President and the
representatives elected by the State Legislatures are collectively 'Members' of
the Council of States, as clearly flowing from Article 83.
Further answer to this argument can be found in
Article 84 itself, which refers to 'membership' of the Parliament, and this
covers the Council of States as well as the House of the People. Then, Article
84 also uses the word 'chosen' with reference to filling a seat in Parliament,
in both the Council of States as well as House of the People. Therefore, a
representative of the State is as much a Member of Parliament as is a member of
the House of the People. The expression "representatives" is equally
used with reference to the House of the People.
There is thus no distinction between the
expressions 'members' and 'representatives'. The submissions of the learned
Counsel are untenable. The plea that the choice of expression
"representative" in relation to the Council of States as against word
"member" used in relation to the House of the People holds the key is
also liable to be rejected.
Relevance of the word "Each" It is the
submission of Mr. Nariman that whilst it is open to Parliament to prescribe by
laying the qualifications for being chosen to the Council of States, the
prescribed qualifications must be such as to ensure that the person so chosen
is a representative of that State, the Assembly of which has elected him. He
submitted that the use of the word "each" in Article 80(4), in
relation to representation of States in the Council of States was not without
significance, in as much as the stress is on providing representation to
"each State" so as to give to the House the character of a body
representing the States.
Emphasis has been placed on the words
representatives of "each State" in Article 80(4) of the Constitution.
In Upper Chambers of other Federal Constitutions, like the Senate in United States, members are elected by
the electorate by treating each State as a Unit equal of the other. There would
be no doubt in such Constitutions that the elected members represent the State.
In the Indian Constitution, we did not opt for equal representation of States
in the Council of States. This could have led to an impression that Rajya Sabha
Members of Parliament do not represent the State, as each State would have
different ratio in the number of members representing it.
It appears that in order to dispel such an
impression it has been provided that, notwithstanding the fact that they are
elected as per allocation made in the Forth Schedule, on the basis of
population, members of the Council of States are indeed representatives of the
State.
The reliance on the word "each" is
misplaced. It fails to notice as to why the word "each" was inserted
in the Article in the first place. Sub-Articles (4) & (5) of Article 80, in
its original form, read as under: -
-
"The
representatives of each State specified in Part A or Part B of the First
Schedule in the Council of State 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.
-
The representatives of
the State specified in Part C of the First Schedule in the Council of States
shall be chosen in such manner as Parliament may by law prescribe." By the
Constitution (Seventh Amendment) Act 1956, which brought about States
reorganization, among others, Article 80 was amended. The Statement of Objects
and Reasons of the Constitution (Seventh Amendment) Act 1951, to the extent
germane here, read as follows:-
"Clause 2. - The reorganization
scheme involves not only the establishment of new States and alterations in the
area and boundaries of the existing States, but also the abolition of the three
categories of States (Part A, Part B and Part C States) and the classification
of certain areas as Union territories. Article 1 has to be suitably amended for
this purpose and the First Schedule completely revised.
Clause 3. - The amendments proposed in Article 80 are
formal and consequential.
The territorial changes and the formation of new
States and Union Territories as proposed in Part II
of the States Reorganization Bill, 1956, involve a complete revision of the
Fourth Schedule to the Constitution by which the seats in the Council of States
are allocated to the existing States. The present allocation is made on the
basis of the population of each State as ascertained at the census of 1941 and
the number of seats allotted to each Part A and Part B State is according to
the formula, one seat per million for the first five millions and one seat for
every additional two millions or part thereof exceeding one million. It is
proposed to revise the allocation of seats on the basis of the latest census
figures, but according to the same formula as before."
Clause 4. - The abolition of Part C States as such and
the establishment of Union territories make extensive amendment of articles 81
and 82 inevitable. The provision in Article 81(1)(b) that "the States
shall be divided, grouped or formed into territorial constituencies" will
no longer be appropriate, since after reorganization each of the States will be
large enough to be divided into a number of constituencies and will not permit
of being grouped together with other States for this purpose or being
"formed" into a single territorial constituency. Clause (2) or
Article 81 and Article 82 will require to be combined and revised in order to
make suitable provision for Union territories.
Instead of amending the articles piecemeal, it
is proposed to revise and simplify them. Incidentally, it is proposed in clause
(1)(b) of the revised Article 81 to fix a maximum for the total number of
representatives that may be assigned to the Union territories by
Parliament." By the Constitution (Seventh Amendment) Act 1951, the words
"specified in Part A or Part B of the First Schedule" as used in
Article 80 (4) were deleted. By the same amendment, the words "States
specified in Part C of the First Schedule" in Article 80(5), were
substituted by the words "Union Territories." The States were being reorganized. The categorization
of the States as Part A, Part B or Part C States was being abolished. Some of
the States earlier classified as Part C States were now being named as "Union Territories". Since the
allocation of seats in the Council of States as given in the Fourth Schedule
must necessarily correspond to the States (and Union Territories) mentioned in the First Schedule, in view of
the requirement of Article 1 (2) and Article 4, the provisions contained in
Article 80 had to undergo consequential amendments.
Noticeably, the word "each" had
appeared only in Article 80(4) in the context of the representatives of the
States. The expression "representatives of the States" appears first
in Article 80(1) and then in Article 80(2) so as to specify the number (to be
elected) and the allocation of seats (to be specified in the Fourth Schedule)
respectively. In neither clause the word "State" is qualified by the
word "each". Since sub-Article (4) and sub-Article (5) were meant to
indicate the manner of election by States of different categories, they were
created as separate provisions. If the word "each" had the
significance attributed during arguments by the writ petitioners, it would have
occurred not only in sub-Article (4) in the context of Part A and Part B
States, but also in sub- Article (5) in the context of Part C States, inasmuch
as States of all categories represented different units of the Union of India.
In the above view, the employment of the word
"each" preceding the word "State", in the context of
representation in the Council of States, is meant only to underscore the fact
that the Legislative Assembly of each State was intended to be a separate
electoral college for returning a member to fill in the seat allocated to the
particular State as specified in the Fourth Schedule. Nothing more and nothing
less. This is more so, in view of the fact that the expression
"representatives of the States" had already occurred twice earlier in
the preceding clauses of the same Article. The word "each" was not
required to be used in the context of Part C States (now Union territories), in
Article 80 (5), as originally provided or even later amended, since the manner
of representation of such units of the Union of India was left to be prescribed
by the Parliament and since each such unit was not intended at that time to be
provided with its own Legislative Assembly.
In the above view, the argument that the use of
the word "each" in Article 80 (4) gives to the House the character of
a body representing the States, does not appeal to us.
Person to have representative character before
being elected It is the argument of the petitioners that the word
"representative" in the context of democracy requires two things;
i.e.
-
capacity to represent
and
-
authority to represent.
They submit that only a member of a class can represent the class in a system
of self-governance.
It has been argued that the words
"representatives of the States" in Article 80 (1) (b) and (2) and the
words "representatives of each State in the Council of States" as appearing
in Article 80 (4) need to be interpreted in a manner consistent with the basic
structure of the Constitution keeping in mind the concept of democracy, i.e.
system of self- governance. Reliance has been placed in this context once again
on Sub-Committee on Judicial Accountability v. UOI & Ors. (supra); P.V.
Narasimha Rao v. State (CBI, SPF) (supra); and S.R. Bommai v. UOI (supra).
The first two cases have already been taken note
of.
Regarding S.R. Bommai, the following
observations, at page 118, have been referred to : - "Thus the federal
principle, social pluralism and pluralist democracy which form the basic
structure of our Constitution demand that the judicial review of the
Proclamation issued under Article 356(1) is not only an imperative necessity
but is a stringent duty and the exercise of power under the said provision is
confined strictly for the purpose and to the circumstances mentioned therein
and for none else. It also requires that the material on the basis of which the
power is exercised is scrutinised circumspectly." The argument is that the
word "representative" in the context of parliamentary democracy
requires both capacity to represent and authority to represent. Only a member
of a class can represent the class in a system of self-governance. It follows
that unless a person belongs to a State he will not have the capacity to
represent the people of the State or the State. A person belongs to a State
either by birth and residence or by domicile or ordinary residence in the
State.
The concept of "State" implies not
only territory but also the people inhabiting the territory. Article 1 says
that India shall be a Union of
States. Therefore, it is the submission of the petitioners, the expression
"representatives of each State" in Article 80 (4) refers to persons
who represent the people of each State and only a person who belongs to the
State or who is one among the people of the State will have the capacity to
represent the State and not a person belonging to another State.
It is further argued by the petitioners that the
very fact that Article 80 (4) provides for election by the elected members of
the Legislative Assembly of the State coupled with the fact that in terms of
Article 170, members of the Legislative Assembly shall be those chosen by
direct election from territorial constituencies in the State and the further
requirement that each one of them is required to be an elector for any Assembly
constituency in the State in terms of Section 5 (c) of the RP Act, 1951 shows
that Members of the Council of States representing a State shall have the
qualifications prescribed for Members of the Legislative Assembly. Both are
representatives of the people; while Members of Legislative Assemblies (MLAs)
are directly elected, members of the Council of States are indirectly elected
by the people of the State through their MLAs.
Section 5 (c) of the RP Act, 1951 requires a
person to be an elector for an Assembly constituency in the State to be
eligible to contest for a seat in the Legislative Assembly. It is the argument
of the petitioners that the capacity to represent arises from being a
registered voter for any Assembly constituency in the State. Therefore, to be
able to represent a State, it is necessary that the person concerned shall be a
registered voter in the State.
Section 19 of the RP Act, 1950 lays down the
requirement of being "ordinarily resident in a constituency" for
being entitled to be registered in the electoral roll for that constituency.
Section 20 gives the meaning of "ordinarily
resident".
It has been argued by Mr. Nariman that an
elected member to the Council of States does not "represent" the
State only because he is elected by the State Assembly. In order to represent
the State (as distinct from representing the State Assembly) in the Council of
States, he must first be the representative of the State under Article 80(4)
before the legislative body elects him. He buttressed this plea by seeking to
highlight that in the said sub-Article, the expression "representatives of
each State in the Council of States" precedes the prescription about mode
of election (the system of proportional representation by means of the single
transferable vote).
The Counsel further argued that the expression
"representatives of the States", as used in Article 80 (1) (b) and
Article 80 (2) and the expression "representatives of each State", as
employed in Article 80 (4) have been left to be defined by Parliament "by
law" made under Article 84 (c) which requires Parliament to prescribe as
to what "such other qualifications" a person must possess in order to
qualify to be chosen as a member of parliament, that is qualifications other
than those given in Article 84 (a) & (b) that relate to citizenship of
India, oath or affirmation inter alia of faithfulness and allegiance to the
Constitution and the prescription about minimum age.
It has been contended that Article 80 (4), by
using the expression "representatives of each State" emphasizes that
person who is elected must first be qualified as a representative of the State
in question. If the qualification was meant to originate from his being merely
elected by any particular State Assembly, the clause would have read: -
"The elected members of the Legislative
Assembly of each State shall elect their representative in the Council of
States in accordance with the system of proportional representation by means of
a single transferable vote." The Counsel has submitted that unlike Article
81, which does not stipulate that a person elected to the House of the People
shall be from a territorial constituency in a particular State so as to be the
representative of such State in the House of the People, Article 80 does
require the person in question to first be a representative of the State before
he is elected by the elected members of the Legislative Assembly of that State.
The mere fact of election by particular State Assembly of any
"elector" in India cannot render that person as being "qualified" to
represent that State.
Mr. Nariman referred to the term "elector"
which has been defined in Section 2 (e) of the RP Act 1951, in relation to
constituency, as a person whose name was entered in the electoral rolls of the
constituency for the time being in force.
He also pointed out that under Section 19 of the
RP Act 1950, every person who is not less than 18 years of age on the
qualifying date and is "ordinarily resident" in a constituency only
is entitled to be registered in the electoral roll of that constituency.
He submitted that provisions of RP Act, 1950 and
1951 were in the nature of "further qualifications for membership",
as clarified through Notes on Clauses on what was enacted as Section 3 of the
RP Act, 1951, as published in the Gazette of India, December 23, 1950-Part
II-Sec.2, which reads as follows:- "Clauses 3 to 6 - Articles 84 and 173
of the Constitution have laid down certain qualifications for membership of
Parliament and of the State Legislatures and have left it to Parliament to
prescribe such further qualifications as it may consider necessary. Clauses 3
to 6 seek to prescribe these further qualifications for membership. (Emphasis
supplied) Section 4 of the RP Act, 1951 prescribes the qualifications for
membership of the House of the People. The said provision generally requires a
person seeking to fill a seat in the House of the People to be "an elector
for any Parliamentary constituency". There was thus a material difference
between the qualification of domicile within the particular State as prescribed
for the Council of States and the qualification of domicile within any
Parliamentary constituency in India as prescribed for the House of the People. This was subject
matter of debate in the provisional Parliament on 11th May 1951, at the time of
consideration of the Bill, which would later take the shape of RP Act, 1951.
Mr. Nariman referred to the debate in Parliament on Section 3 of the RP Act
1951.
It appears that in the course of the said debate
it came to be pointed out as incongruous as to why a candidate to the Council
of States should be a resident of the State concerned while a candidate to the
House of the People need only be a resident in any Parliamentary constituency
in the country. The record of Parliamentary debates would show that Dr.
Ambedkar had explained the distinction referring to the requirement of
residence within the State concerned on account of the House in question being
the Council of States and the absence of such requirement of residence within
the State concerned for the other House because it was the House of the People.
It is the submission of the learned counsel that
the Parliamentary debates on the justification for distinction is clearly
indicative of the reason why the representative character of the member elected
to the Council of States was defined, it being that the election was to the
Council of States and not to the House of the People; that is to say that a
person residing or working in Area "A", therefore, could not
represent Area "B", or for that matter any other place.
It is the contention of the Counsel that the
impugned amendment sets at naught the representative character of the person
elected, as grafted in the provision amended in the form of his connection with
the State he represents in the Council of States, leaving it undefined either
with reference to "residence" (in the past or in the present), or to
place of birth, or to performance of public duties in the State whose Assembly
elects him to the Council of States.
Before proceeding further, we would like to
refer to certain observations of a Constitution bench of this Court in G.
Narayanaswami v. G. Pannerselvam & Ors. [(1972) 3 SCC 717], appearing in
Paragraph 4 which read as under: - "Authorities are certainly not wanting
which indicate that courts should interpret in a broad and generous spirit the
document which contains the fundamental law of the land or the basic principles
of its Government.
Nevertheless, the rule of "plain
meaning" or "literal" interpretation, described in Maxwell's
Interpretation of Statutes as "the primary rule", could not be
altogether abandoned today in interpreting any document. Indeed, we find Lord
Evershed, M.R., saying: "The length and detail of modern legislation, has
undoubtedly reinforced the claim of literal construction as the only safe
rule".
(See: Maxwell on Interpretation of Statutes,
12th Edn., p. 28.) It may be that the great mass of modern legislation, a large
part of which consists of statutory rules, makes some departure from the
literal rule of interpretation more easily justifiable today than it was in the
past.
But, the object of interpretation and of
"construction" (which may be broader than "interpretation")
is to discover the intention of the law-makers in every case (See: Crawford on
Statutory Construction, 1940 Edn., paragraph 157, pp. 240-42).
This object can, obviously, be best achieved by
first looking at the language used in the relevant provisions. Other methods of
extracting the meaning can be resorted to only if the language used is
contradictory, ambiguous, or leads really to absurd results. This is an
elementary and basic rule of interpretation as well as of construction
processes which, from the point of view of principles applied, coalesce and
converge towards the common purpose of both which is to get at the real sense
and meaning, so far as it may be reasonably possible to do this, of what is
found laid down. The provisions whose meaning is under consideration have,
therefore to be examined before applying any method of construction at all. ."
We endorse and reiterate the view taken in the above quoted paragraph of the
Judgment. It may be desirable to give a broad and generous construction to the
Constitutional provisions, but while doing so the rule of "plain
meaning" or "literal" interpretation, which remains "the
primary rule", has also to be kept in mind. In fact the rule of
"literal construction" is the safe rule unless the language used is
contradictory, ambiguous, or leads really to absurd results.
Regarding the words in Article 80(4) of the
Constitution, viz., "the representatives of each State", as already
stated, we are not impressed with the submission that it is inherent in the
expression "representative", that the person, in order to be a
representative, must first necessarily be an elector in the State. If this concept
were to be stretched further, it might also require birth in the particular
State, or owning or having rented property or belonging to the majority caste,
etc. of that State. Needless to mention, no such qualification can be added to
say that only an elector of that State can represent that State. The
"representative" of the State is the person chosen by the electors
who can be any person who, in the opinion of the electors, is fit to represent
them. There is absolutely no basis for the contention that a person who is an
elector in the State concerned is more "representative" in character
than one who is not.
We do not find any contradiction, ambiguity, or
absurdity in the provisions of the law as a result of the impugned amendment.
Even while construing the provisions of the Constitution and the RP Acts in the
broadest or most generous manner, the rule of "plain meaning" or
"literal" interpretation compels us not to accept the contentions of
the petitioners.
Upon being given their plain meaning, the words
"representatives of the States" in Article 80 (1) (b), Article 80 (2)
and Article 80 (4) must be interpreted to connote persons who are elected to
represent the State in the Council of States.
It is the election that makes the person elected
the "representative". In order to be eligible to be elected to the
Council of States, a person need not be a representative of the State before
hand. It is only when he is elected to represent the State that he becomes a
representative of the State. Those who are elected to represent the State by
the Electoral College, which for present purposes means the elected members of
the legislative assembly of the State, are necessarily the
"representatives" of the State.
Article 84 applies to the Council of States as
much as it does to the House of the people. This Article begins with the words:
- "A person shall not be qualified to be chosen to fill a seat in
Parliament unless." Thus, every member of Parliament, be one
"nominated by the President" under Article 80 (1) (a), or "a
representative of the State" elected under Article 80 (1) (b) read with
Article 80 (4) & (5), or a "member" of the House of the People
elected under Article 81, fills a seat in Parliament.
A Constitution Bench of this Court in Shri V.V.
Giri v. Dippala Suri Dora & Ors. [(1960) 1 SCR 426: AIR 1959 SC 1318] had
while construing the expressions "seat' and "to fill a seat" as
used singly or together in Articles 81(2) (b), 84, 101(2), and 330 held as
under: - ".. some articles of the Constitution and some sections of the
Act refer to seats in connection with election to the House of the People. For
instance, when Article 81(2)(b) provides for the same ratio throughout the
State between the population of each constituency and the number of seats allotted
to it, it does refer to seats, but in the context the use of the word
"seats" was inevitable. Similarly Article 84 which lays down the
qualification for the members of parliament begins by saying that a person
shall not be qualified to be chosen "to fill a seat" in Parliament
unless he satisfies the tests prescribed by its clauses (a), (b) and (c). Here
again the expression "to fill a seat" had to be used in the context.
The same comment can be made about the use of the word "seat" in
Articles 101(2) and in 330. There is no doubt that when a candidate is duly
elected from any constituency to the House of the People he fills a seat in the
House as an elected representative of the said constituency; and so the
expression "filling the seat" is naturally used whenever the context
so requires." (emphasis supplied) On the same analogy, it must be said
that when a candidate is elected by the electorate comprising of the members of
the Legislative Assembly of the State to represent the State in the Council of States,
he is elected and chosen as "a representative of the State". The
words "representative of the State" do not in any manner connote that
the representative must also be an elector or a voter registered in the State
itself.
It is the status acquired upon election as a
member of the legislature that bestows upon the person the character of a
"representative". This has been the view taken by this Court earlier
also. In B.R. Kapur v. State of T.N. & Anr. [(2001) 7 SCC 231], a
Constitution Bench of this Court was considering the questions relating to
entitlement of a person, not a member of the legislature, to be appointed as a
Chief Minister.
On the basis of construction of various
provisions of the Constitution, in particular Articles 163 (1), 164 (1) (2)
& (4), 173, 177 and 191, this Court held at page 289: -
"There is necessarily implicit in these
provisions the requirement that a Minister must be a member of the Legislative
Assembly and thus representative of and accountable to the people of the State."
An elector has to be an ordinary resident of the Constituency in which he is
registered as such in view of the statutory requirements of Sections 19 and 20
of the RP Act, 1950. There is no requirement in law that the person elected
must possess the same qualifications as the elector possesses.
This is further clear from the scheme of the
Constitution as is evident from Article 171 (3) of the Constitution that
provides for the composition of the Legislative Council, which is a House at
the level of the States, akin to the Council of States at the level of the Union.
Members of the municipalities and boards,
graduates, teachers are required under Article 171 to elect a certain
percentage of members of the Legislative Council. It is not necessary that the
person elected must either be a member of the municipal board or a graduate or
himself a teacher. The electorate can elect whoever in their wisdom is
considered most suited to be a representative of theirs.
In G. Narayanaswami's case (supra), a Constitution
Bench of this Court was considering the provisions contained in Articles 171
& 173 and Sections 5 & 6 of the RP Act, 1951.
The following observations made in Paragraph 7
of the Judgment are of relevance here: - "The plain and ordinary meaning
of the term "electorate" is confined to the body of persons who
elect. It does not contain, within its ambit, the extended notion of a body of
persons electing representatives "from amongst themselves". Thus, the
use of the term "electorate", in Article 171(3) of our Constitution,
could not, by itself, impose a limit upon the field of choice of members of the
electorate by requiring that the person to be chosen must also be a member of
the electorate." Undoubtedly, Section 6 of the RP Act, 1951 continues to require
domicile within the State as a necessary qualification for a person seeking to
be elected as a member of Legislative Assembly or the Legislative Council of
the State. But, in view of the above law laid down by this Court, from which we
do not find any good reason to make a departure in the case at hand, there is
no merit in the plea that the "representative of the State" elected
by the legislative assembly of the State must also be an ordinary resident of
the State just because the electorate that is electing him are required by law
to be so.
The question of "ordinarily resident"
is relevant for preparation of electoral rolls and nothing further. This is
evident from bare reading of the scheme of provisions contained in RP Act,
1950, in particular Sections 13D, 14, 15, 17, 18, 19 and 20. Electoral rolls
for purposes of elections governed by the RP Acts are prepared
assembly-constituency wise under Section 15. Section 13D relates to the
Electoral rolls for Parliamentary constituencies and renders the electoral
rolls for all assembly constituencies comprised within the parliamentary
constituency put together as the electoral roll for such parliamentary
constituency. Electoral rolls are prepared basically for assembly
constituencies and revised year-wise. A conjoint reading of Sections 17, 18, 19
& 20 shows that a person can get himself registered as voter once in only
one assembly constituency which must be the one within which he is an ordinary
resident.
In Pampakavi Rayappa Belagali v. B.D. Jatti
& Others [1971 (2) SCR 611], the election of the first respondent to the
Mysore Legislative Assembly had been challenged, amongst others, on the ground
that he had ceased to be a person "ordinarily resident" within the
Jamkhandi constituency and thus questioning the validity of entry of his name
on the electoral roll for that constituency. The High Court had rejected the
election petition including on the aforesaid ground. This Court while
dismissing the appeal against the judgment of the High Court observed, inter alia,
that the conditions of registration as an elector in the electoral roll, as
provided in Section 19 of the RP Act, 1950 includes the condition that the
person must be "ordinarily resident" in the constituency and that the
meaning of the expression "ordinarily resident" is given in Section
20 and further that "the conditions about being ordinarily resident in a
constituency for the purpose of registration are meant for that purpose alone.".
The qualification of "ordinarily
resident" is provided for registration as a voter in a general election
for deciding the place of voting by an elector and for the preparation of
electoral rolls. Under our constitutional scheme, Parliamentary or Assembly
constituencies are territorially divided and hence territorial link is provided
for the voter, but importantly not for the candidates.
The expression "representative of each
State" in Article 80 (4) of the Constitution is not a qualification and
cannot be read as a condition precedent for being elected. The Constitution has
dealt with "qualifications" exclusively in Article 84 of the
Constitution, as would also be clear from the marginal note besides the
contents of the provision itself.
We agree with the submission that by definition,
the word "representative" simply means a person chosen by the people
or by the elected Members of the Legislative Assembly to represent their
several interests in one of the Houses of Parliament. A person becomes a
representative only after he is chosen in the prescribed manner. He is not a
representative earlier. At best, he can claim to be called a candidate or a
potential representative. The theory that before he becomes a representative he
should have some nexus other than one prescribed by the law in force is not
palatable and not supported by any law or view taken in any case.
Panchayati Raj Amendment
territorial link Mr. Nariman has submitted that
there is a constitutional recognition of the concept of territorial link of the
members of the Council of States (as representing the particular State in the
Council of States).
He buttressed this contention by referring to
the 73rd and 74th Constitutional Amendment Acts 1992 which introduced Part IX
and Part IX-A to provide that there shall be constituted in every State,
Panchayats (at village, intermediary and district levels) and Municipalities as
institutions of self government (Article 243B and Article 243Q). Article 243C
(Composition of Panchayats), through clauses (c) & (d) of sub-Article (3),
authorizes the Legislature of a State, by law, to provide for the
representation "of the members of the House of the People and the members
of the Legislative Assembly of the State representing constituencies which
comprise wholly or partly a Panchayat area at a level other than the village
level in such Panchayat" and "of the members of the Council of States
and the members of the Legislative Council of State, where they are registered
as electors within" a Panchayat area at the intermediate or district
level, as the case may be.
Similarly, under Article 243R (Composition of
Municipalities), through sub-Article (2), the Legislature of a State has been
vested with the power to, by law, provide for the representation in a
municipality of "the members of the House of the People and the members of
the Legislative Assembly of the State representing constituencies which
comprise wholly or partly the municipal area" and "the members of the
Council of States and the members of the Legislative Council of the State
registered as the electors within the municipal area".
According to Mr. Nariman, the constitutional
recognition given to the territorial link between the member of the Council of
States (as representing the particular State in the Council of States) and his
position as a registered elector in any Panchayat or Municipal area in that
State for purposes of local bodies reinforced the plea that the insistence on
local residence within the particular State for representatives of the States
in the Council of States was part of the Constitutional scheme.
The argument is found, on close scrutiny, to be
devoid of merit for several reasons.
First and foremost, the provisions mentioned
above are not exceptional in relation to a member of the Council of States on
account of his position as a registered elector in any Panchayat or Municipal
area in that State for purposes of local bodies. They equally apply to the
members of the House of the People and the Legislative Assemblies (as indeed,
the Legislative Councils) of the State concerned.
Secondly, the above provisions are part of the
scheme of local self-government engrafted in the Constitution, the object
sought to be achieved thereby being to provide a linkage between the local
bodies and the legislature at the State and Union levels. The purpose sought to be achieved is to
give to the Members of State Legislature and the Parliament access to the
grass-root level, equipping them with knowledge about local problems, issues,
opinions and aspirations, thereby strengthening democracy.
Then, the enabling provisions may not have
uniform application. Their effect would depend on the provisions enacted or to
be enacted by the respective State Legislatures for each State. The enabling
provisions, the import of which is reflected in phraseology extracted above,
themselves make it abundantly clear that the claim of the members of the State
or Union Legislature for representation in the Panchayat or municipality
depends on various factors that may or may not exist vis-`-vis each such
member. To elaborate, it can be said that if there can be a member of the
Council of States registered as an elector within a Panchayat area or municipal
area there can also be a member of the Council of States not so registered as
an elector within a Panchayat area or municipal area. Moreover, the relevant
clauses do not apply only to elected members of the Council of States. Thus,
even a nominated member of the Council of States qualifies to be a
representative in the Panchayat or a municipality if he fulfills the
qualification prescribed. So, a conclusion in respect of the elected
"representatives of the State" in the Council of States cannot be
reached on such basis.
Further, these provisions generally provide for
the qualifications of various categories of persons, which happen to include
the members of the Council of States, to be representatives in a Panchayat or
municipality, and share in local self governance. Since the members of the
Council of States were one of the several sources being tapped for the purpose
of providing for representation of different interest groups in the
deliberative wing at the local level, it was incumbent to lay down some method
of selection.
Last, but not the least, the provisions that
have been referred are Constitutional provisions. Even on the premise that in
enacting them the factor of registration as elector within a particular
Panchayat or municipal area was considered important in relation to the members
of the Council of States so as to give them the additional responsibility of
representation in the local Panchayat or municipality, it cannot be said that
these provisions add the requirement of domicile to the qualifications for
membership in the Council of States. There is no such express Constitutional
provision prescribing such additional qualification.
Thus, the argument based on the 73rd and 74th
Constitutional Amendment Acts 1992 which introduced Part IX and Part IX-A to
provide for Panchayats and Municipalities as institutions of self government is
of no avail to the petitioners.
Concept of Residence to change with passage of
time It is the argument of the Writ Petitioners that there must be a rational
nexus between the State and its representatives in the Council of States. Such
nexus, as per the submissions, could be found only in the requirement of
residence in the State for a minimum specified period. To be able to
"represent" the State, it has been urged, one has to be fully
conversant with the language, current problems, needs, aspirations and
interests of the people of the State and the concerns of the State Government.
It is not difficult to visualize a conflict between duty and interest in the
case of members belonging to one State being elected from another State on
issues upon which the two States are at loggerheads.
The contention of the petitioners is that the
provision contained in Section 3 of the RP Act, 1951, prior to the impugned
amendment, provided for a reasonable nexus between a member of the Council of
States and the State from which he is elected, viz. the nexus on account of
domicile. It has been argued that the amendment doing away with the said
provision i.e. requirement of residence in the State, has the effect of
snapping the rational nexus necessary to fulfill the object of representation
in the Council of States having regard to the federal character of the Indian
Union.
Mr. Nariman, in the course of his arguments, has
referred to the arrangement in Section 3 of the RP Act 1951, as originally
enacted, as the constitutional scheme. On this premise, he would argue that
Parliament could make a departure from this scheme only by providing some other
criteria or link for determining the representative capacity of a prospective
member of the Council of States. He illustrated this by submitting that the
test of "ordinary residence", as inherent in Section 3 of the 1951
Act before its amendment, could be modified by Parliament only so as to provide
some other characteristic of effective representation, viz.
-
born
in the State,
-
having
property in the State,
-
philanthropic
or charitable works done in the State,
-
education
in the State,
-
having
worked for some period of time in the State, or some such other criteria.
It was also submitted by some petitioners that
the impugned amendment in Section 3 of the RP Act, 1951 has opened the
floodgates of corrupt practices in the matter of allotting seats to the
candidates of choice of powers that be in the political parties and their
election is ensured by maneuvers or manipulations.
The above argument is based upon the intrinsic concept
of the word 'representative'. This word 'representative' has no definite
meaning. Like 'residence', 'representative' is a malleable concept. In some
federal countries, the Upper House has been designed to reflect the views or
interests of the constituent States and to provide a means to protect the
States against improper federal laws. In the United States, the Senate is composed
on federal principles. Each State, irrespective of its size or population,
sends two Senators and, thus, has an equality of representation in the House.
On the other hand, the House of Representatives is constituted on population
basis. In US the Senators are elected by the population vote. The Senate is a
continuing body and one- third of its members retire every two years.
In Canada, the Senate is composed on a different
principle. Each province is assigned a fixed number of Senators, though
unequal. The allegiance of the Senators in Canada is usually to the party which appoints them.
Rajya Sabha resembles the American Senate
insofar as it is a continuing body. Rajya Sabha, however, differs from the US
Senate insofar as its members are not elected directly by the States and there
is no equality of representation of the States. Rajya Sabha resembles the
Australian Senate insofar as both are based on the principle of rotation.
The point which we would like to emphasize here
is that even in countries where strict federalism exists, with the passage of
time, the original role of the Senate of guarding interests of the States as
political units has largely disappeared. With globalization, the US Senate now
functions as a national institution rather than as a champion of local
interests. This transformation has taken place in US due to several factors
such as direct election of Senators by the people of a State, development of
strong political parties advocating national programmes and development of
national integration, etc.
Similarly, in India, after 1990, due to relaxation of
central economic control, the conceptual and theoretical framework of
federalism has undergone a sea-change. The concepts of the words 'residence'
and 'representative' are not fixed concepts, therefore, they have to change
with time. The constitutional framers have kept that flexibility in mind, they
have left it to the Parliament to decide the qualification for membership of
the Parliament and, while deciding the qualification, the Parliament has to
take into account the contextual scenario. There cannot be one uniform,
consistent and internal definition or connotation of these concepts.
These concepts undergo changes with the passage
of time.
They cannot be decided etymologically by
reference to dictionaries.
Sub-Section (1) of Section 20 of the RP Act,
1950 clarifies that mere ownership or possession of a dwelling house at a
certain place does not necessarily mean that a person is ordinarily residing
there. Sub-Section (2) declares that incarceration as a prisoner in jail or
confinement as a patient of mental illness at a certain place does not make that
place the ordinary residence of the individual.
On the other hand, some of the sub-Sections
collectively indicate that temporary absence on account of certain specified
exigencies cannot disrupt the ordinary resident status of an individual.
Sub-Section (1A) provides that temporary absence
of a person from a particular place does not result in cessation of his
ordinary residence there.
Sub-Sections (1B) (3) and (4) protect the
ordinary resident character of an individual vis-`-vis the place where he would
be ordinarily residing but for official engagements. Sub- Section (1B) takes
care of legislators' absence from their respective constituencies in connection
with responsibilities of the office they hold. Sub-Sections (3) and (4) pertain
to compulsions of the service (in Armed forces or police or foreign posting in
service under Government of India) to be at a place other than the one where
one ordinarily resides.
Sub-Sections (5) and (6) of Section 20 of RP
Act, 1950 render the declaration, in prescribed form, of a person about the
place of his (and that of his spouse) ordinary residence as sufficient proof,
though subject to determination, should a question be raised in such regard,
under rules to be framed under sub-Section (7).
Lexicon refers to Cicutti v. Suffolk Country
Council, [(1980) 3 All. ER 689], to denote that the word "ordinarily"
is primarily directed not to duration but to purpose. In this sense the
question is not so much where the person is to be found "ordinarily",
in the sense of usually or habitually and with some degree of continuity, but
whether the quality of residence is "ordinary" and general, rather
than merely for some special or limited purpose.
The words "ordinarily" and
"resident" have been used together in other statutory provisions as
well and as per the Law Lexicon they have been construed as not to require that
the person should be one who is always resident or carries on business in the
particular place.
The expression coined by joining the two words
has to be interpreted with reference to the point of time requisite for the
purposes of the provision, in the case of Section 20 of RP Act, 1950 it being
the date on which a person seeks to be registered as an elector in a particular
constituency.
Thus, residence is a concept that may also be
transitory.
Even when qualified by the word
"ordinarily" the word "resident" would not result in
construction having the effect of a requirement of the person using a
particular place for dwelling always or on permanent uninterrupted basis. Thus
understood, even the requirement of a person being "ordinarily
resident" at a particular place is incapable of ensuring nexus between him
and the place in question.
The nexus between the candidate and the State
from which he gets elected to fill a seat in the Council of States is provided
by the perception and vote of the elected Members of the Legislative Assembly
who consider him (necessarily an Indian Citizen) as best qualified to further
the interests of the State in Parliament.
When voting for a candidate in an election,
perception of his skills as a legislator, his knowledge of State affairs, his
services to the constituency he seeks to represent and the satisfaction or
confidence in having him as the representative of the electorate are enough
considerations or qualifications.
These considerations undoubtedly are certainly
of more weight than transitory or often illusory concept of
"residence".
This Court would refrain from passing comment on
the argument of the Union of India that it is a matter of common knowledge
that, before the impugned amendment was brought about, in the anxiety to secure
good candidates, the requirement of residence was being bypassed usually by
illegitimate subterfuges like being compelled to make false declarations about
their real residence or further that the experience had shown that the
qualification of domicile was proving to be an obstacle in getting the right
members into the Council.
Suffice it to say here that our electoral system
needs to be rendered free from all known vices and so there is no reason why
Parliament should be denied the opportunity to bring in such legislation as is
deemed by it, in its wisdom, as would plug the possible holes of abuse, for
which Parliament has the necessary legislative competence.
Article 80 (4) is not being correctly read
by the petitioners when they make the submissions that have been noticed above.
The suggestion that the expression 'representative of each State' implies a
condition of residence or other link with the States to be represented ignores
the importance of the expression "in" preceding the expression
"the Council of States".
Article 80 (4) does not say that
representative of each State to be elected must first be a representative of
the State before election. To read this requirement into Article 80 (4) would
do violence to the words and would be grammatically incorrect.
A grammatical clause analysis of Article 80 (4)
shows that it is nothing more and nothing less than what is reflected if it
were to be worded thus: - "The elected members of the Legislative Assembly
of the State shall elect the representatives of each State in the Council of
States in accordance with the system of proportional representation by means of
a single transferable vote".
In the provision contained in Article 80 (4),
thus put in the active voice, the emphasis is on 'who elects'. In the existing
passive form, the emphasis is on how the representatives would be elected. The
result, either way, is the same. Article 80 (4) deals with the manner of
election and nothing more.
Therefore, the words "representative of
each State" only refers to the members and do not import any further
concept or requirement of residence in the State.
Absence of Justification Objects & Reasons
Another submission urged is that the Statement of Objects and Reasons for the
Bill which brought about the amendment itself shows the absence of
justification for doing away with the will of the Parliament as earlier
reflected in original Section 3 of the RP Act 1951, which was in consonance
with the scheme of the Constitution. The Statement of Objects and Reasons for
the Bill mentioned that "a precise definition for 'ordinarily resident'
was very difficult" and that after the matter was "examined in depth
by the Government" it had been decided to do away with the requirement of
residence in a particular State or Union Territory for contesting election to
the Council of States from that State or Union Territory, and further that
there were numerous instances where persons who were not normally residing in
the State had got themselves registered as voters in such State simply to
contest the elections to the Council of States.
The petitioners point out that the definition of
"ordinarily resident" contained in Sections 19 and 20 of
Representation of the People Act, 1950 remain unamended. As per their
submissions, if persons actually not residing in a particular State have
wrongly got themselves registered as voters in such State or there was
difficulty in applying the words 'ordinarily resident', the statute afforded
the remedy in Section 20 (7) of Representation of the People Act, 1950, giving
authority to the Central Government to frame rules, in consultation with the
Election Commission, to determine the questions arising.
Besides, it has been argued, the decision of the
Election Officer in above regard, under the existing law, is rendered final and
cannot be raised again in an Election Petition, as held by a Constitution Bench
in Hari Prasad Mulshanker Trivedi v. V.B. Raju & Ors. [1974 (3) SCC 415].
It has been argued that the reasons given in the
Statement of Objects and Reasons for the Amendment Act do not provide any
rational justification for the impugned amendment. The problem that some
persons, though not ordinarily resident in the State, yet manage to get
themselves registered as voters in a Parliamentary Constituency of the State
and get elected to the Council of States, needs to be tackled by making more
effective the provision so as to prevent such registration, if any, and for
cancellation of such registration and deletion of their names from the voters
list.
This problem, according to the petitioners,
requires a different treatment but not by striking at the root of meaningful
and effective representation of the States in the Council of States by amending
Section 3. The petitioners' contention, thus, is that the amended Section 3 is
irrational, arbitrary and unconstitutional.
The petitioners further argue that the reasons
given in affidavit in reply, by Union of India, to justify the impugned
amendment for amending Section 3 are different from the reasons given in the
Statement of Objects and Reasons for the Bill.
The Counter Affidavit of the Union of India
states that the members of Legislative Assemblies are in the best position to
decide who would best represent their States' interest in the Rajya Sabha. The
petitioners submit that this is a doubtful proposition having regard to what
the Ethics Committee of the Council of States said in its report about large
sums of money being the motivating factor in electing members of the Council of
States.
The petitioners also lament that the well
considered view expressed by an eminent body like the National Commission on
Working of the Constitution has been unreasonably brushed aside. The Commission
in Paragraph 5.11.5 of its report did express its view that the Parliamentary
legislation that had been initiated seeking to do away with the domiciliary
qualification for being chosen as a representative of any State or Union
territory in the Council of States would affect "the basic federal
character of the Council of States" and that in order to maintain the said
basic federal character of the said House, "the domiciliary requirement
for eligibility to contest elections to Rajya Sabha from the concerned State is
essential". Union of India has stated that it respectfully differs from
the views expressed by the Commission.
We need not go into the question whether the
views of the National Commission on Working of the Constitution were supported
or not by elaborate examination of the issue in all of its dimensions, since
the said views are not binding on the Government. The role of the Commission
was more in the nature of being advisory. We are not impressed with the other
submissions, having already rejected the plea based on the federal character of
polity. The views of the Commission were founded on that premise.
In Hari Prasad Mulshanker Trivedi v. V.B. Raju
(supra), relied upon by the petitioners, this Court was concerned with the
question whether the election of respondent numbers 4 & 5 as members of the
Council of States from the State of Gujarat which was challenged by way of an
election petition, was void on the ground that they were not ordinarily resident
in the area covered by any parliamentary constituency in the State of Gujarat
and that their names had been illegally entered in the electoral rolls of the
respective constituencies in Gujarat and as they were not 'electors' within the
meaning of Section 2 (1)(e) of RP Act, 1951, they were not eligible to become
candidates in the election.
While dealing with the contention about
jurisdiction of the Court to decide whether the entries in the electoral roll
regarding the respondents were valid or not, this Court observed: - "The
requirement of ordinary residence as a condition for registration in the
electoral rolls is one created by Parliament by Section 19 of the 1950 Act, and
as we said, we see no reason why Parliament should have no power to entrust to
an authority other than a court or a tribunal trying an election petition the
exclusive power to decide the matter finally. We have already referred to the
observation of this Court in Kabul Singh case that Sections 14 to 24 of the
1950 Act are integrated provisions which form a complete code in the matter of
preparation and maintenance of electoral rolls. Section 30 of that Act makes it
clear that civil courts have no power to adjudicate the question. In these
circumstances we do not think that it would be incongruous to infer an implied
ouster of the jurisdiction of the Court trying an election petition to go into
the question. That inference is strengthened by the fact that under Section
100(1) (d) (iv) of the 1951 Act the result of the election must have been
materially affected by non-compliance with the provisions of the Constitution
or of that Act or of the rules, orders made under that Act in order that High
Court may declare an election to be void. Non- compliance with the provisions
of Section 19 of the 1950 Act cannot furnish a ground for declaring an election
void under that clause." While disposing off the appeal, the Court
concluded thus:
"We think that the intention of the
Parliament to oust the jurisdiction of the Court trying an election petition to
go into the question whether a person is ordinarily resident in the
constituency in the electoral roll of which his name is entered is manifest
from the scheme of 1950 and the 1951 Acts. It would defeat the object of the
1950 Act if the question whether a person was ordinarily resident in a
constituency were to be tried afresh in a court or tribunal, trying an election
petition." The above observations do not advance the case of the
petitioners in any manner. There may be a separate machinery available under
the RP Act, 1950 to question and inquire into the correctness of the entry of
the name of an individual in the electoral roll of a particular constituency, a
remedy distinct from that of an election petition to challenge the election of
the candidate declared to have been returned in an election, but this fact
cannot lead to the conclusion, by any stretch of reasoning, that the removal of
the domiciliary requirement from the qualifications for membership of
Parliament is opposed to law or common sense.
Union of India would refer to the Registration
of Electoral Rules, 1960 as the rules framed under Section 20 of the RP Act,
1950. The said rules, generally speaking, provide for the form and languages of
the electoral rolls; preparation thereof in parts; order of names; forms in
which declaration about the claim and fulfillment of qualification is required
to be made; information to be supplied by occupants of dwelling houses; access
to the registers; publication of draft electoral rolls and publicity to be
given thereto; lodging of claims and objection with manner and forms prescribed
in that regard; procedure for process, rejection or acceptance of claims and
objections after or without inquiry; inclusion or deletion of names; final
publication of electoral rolls; appeals or revisions against the orders passed;
identity cards etc. We have not been able to find any specific provision in
these rules as could be held to be a guide to the concerned authorities for
determining in a particular fact situation if an individual is, or is not,
"ordinarily resident" of a particular place at a particular point of
time.
We must hasten to add that we are not saying
that it is not possible to give a precise definition of the expression
"ordinarily resident" for purposes mentioned in the electoral law. We
would also not make an attempt to give such definition in these proceedings
since that would be a matter within the domain of the Legislature. What we want
to emphasize is only the fact that the Central Government faced difficulty in
giving a precise definition of the expression and candidly admitted the
difficulty while introducing the amendment.
In this context, what could be open to the Court
is to examine whether the difficulty in giving precise definition was not a bona
fide reason in view of the meaning of the expression given in Section 20 of the
RP Act, 1950 or in the face of the dictionary meaning by which the said
expression can be generally understood. We have already found that the
provision in question leaves much to be desired and the guidance provided by
law is deficient in that it does not give a clear cut definition as to how the
question of ordinary residence of an individual is to be determined.
Article 84 of the Constitution provides for
qualifications for membership of Parliament. The requirements in Article 84 for
a person to fill up a seat in either House of Parliament, including the Council
of States, are: -
-
The
person elected should be a citizen of India;
-
He
must subscribe an oath of affirmation as per the form set out in the Third
Schedule;
-
In
the case of Council of States he must be not less than 30 years of age;
-
He
must possess such other qualifications as may be prescribed in this behalf by
or under any law made by Parliament.
The disqualifications for being chosen as, or
for being, a member of either House of Parliament are contained in Article 102.
A person incurs disqualification if he: -
-
holds
any office of profit;
-
is
of unsound mind and stands so declared by a competent court;
-
is
an un-discharged insolvent;
-
is
not a citizen of India or has voluntarily acquired a citizenship of a foreign State etc;
-
is
so disqualified under any law made by the Parliament.
The Constitution, thus, has no requirement that
a person chosen to represent a State in the Council of States must necessarily
be a voter in that State itself. The Constitution, after prescribing certain
qualifications and disqualifications, has left it to the Parliament to provide
other such qualifications or disqualifications. The Parliament had initially
prescribed an additional qualification that a person so chosen should be an
elector for a Parliamentary constituency in the State. After working out this
provision for more than five decades, the Parliament in its legislative wisdom,
decided through the impugned amendment that a person chosen to be a
representative of a State in the Council of States need not necessarily be an
elector within the particular State or, in other words he must be an elector in
any parliamentary constituency in India, but not necessarily in the concerned
State.
Union of India has submitted that the
Parliamentary Debates and the Report of the Standing Committee indicate that
the experience of the past fifty years has been considered.
According to its submissions, the considerations
which weighed with the Parliament, inter alia, included the fact that the
Constitution does not prescribe any mandatory requirement that the elected
member should be an elector in the State from where he is elected.
Union of India would also claim that several
persons whose presence could add to the quality of debates and proceedings in
the Council of States had, under the dispensation before amendment, been
constrained to enroll themselves as voters in another State just in order that
they could be elected from such State. It has been further submitted that
unless they did so, some States would remain unrepresented in the Council of
Ministers due to the non- availability of such talented members of these States
in the House of the People and the Council of States and, thus, the opening out
of the residential provision was meant to help in this regard. The Constitution
under Article 19(1)(e) guarantees the freedom to a citizen to choose a
residence of his choice.
There are several cases of elected
representatives who may have multiple residences and may have to choose any one
of them as a matter of convenience where to vote.
The cases of persons maintaining multiple
residences at several places would be few and far between. Even otherwise that
should not have posed any problem since the requirement of law was that of
ordinary residence which would not apply to each of the several residences of a
person.
We are not concerned with the political
compulsions or considerations that are implied by some of the above- mentioned
submissions of the Union of India and others supporting its stand. It is not
necessary for us to examine the plea of the Union of India as to the competence
or talent of, or the addition to the quality of debates or discussion in
Parliament due to participation by, certain specific members of Parliament
reference to whose names was sought to be made by the learned counsel in the
course of arguments contesting the contentions of the writ petitioners.
Suffice it to say here that the submissions on
both sides would show that the erstwhile arrangement in the law, that is the
arrangement prior to the impugned amendment, to determine the question as to
whether a particular person is ordinarily resident of a particular place or not
had not worked satisfactorily. The law does not give a clear concise definition
or guidance in this regard. The declaration of the person concerned is
generally taken as the gospel truth and before the correctness of such
declaration is disputed, the challenger must arm himself with cogent proof
showing facts to the contrary. In this scenario, declarations that were false
to the knowledge of the makers thereof seem to have been used brazenly and with
impunity. We mention this trend because its existence was alleged by some
counsel and not denied by anyone. This undoubtedly could not be a happy state
of affairs.
Nonetheless, if the Parliament in its wisdom has
chosen to do away with the domiciliary requirement as qualification for
contesting an election to fill a seat as representative of a particular State
in the Council of States, fault cannot be found with such decision of the
Parliament on the ground that difficulty to define what was meant by the
expression "ordinarily resident" was not an honest ground. This, for
the simple reason that there was nothing in the Constitution or the law at any
point of time rendering the domiciliary requirement as crucial qualification
for purposes particularly of the Council of States.
We must, however, add here that while the
impugned amendment cannot be assailed on the above mentioned reasons, doing
away with the domiciliary requirement cannot always be the answer since it
would remain an obligation of the Legislature and the Central Government to
define precisely as to what is meant by the expression "ordinarily
resident" because that would remain sine qua non for registration of a
person as an elector in a particular Constituency and thus a subject from which
one cannot shy away. We would only hope for purposes of its proper application
under the relevant provisions of the law concerning elections that the
Parliament and the Central Government would take necessary steps to
unambiguously define the said expression.
As regards the criticism that the reasons given
in the counter affidavit of the Union of India are distinct from those set out
in the Statement of Objects and Reasons of the Bill that became the impugned
law, we may only state that the Statement of Objects and Reasons of a proposed
legislation is not the compendium of all possible reasons or justification.
We do not find any contradiction in the stand
taken by the Union of India in these proceedings in relation to the Statement
of Objects and Reasons of the impugned amendment.
Rendering it a case of 'No qualification' -
Abdication of its Function by Parliament The counsel for the petitioners have
argued that the impugned amendment has dispensed with the only qualification
(the residential qualification) that had been built in by the Parliament in the
provision to give meaning to the representative character of the person chosen
to be the member of the Council of States, and at the same time failed to
define or prescribe any other criteria which Parliament regards as relevant for
the person elected being a "representative" of that State. They would
submit that the marginal note "Qualification for the Membership of Council
of States" which had been retained for Section 3 of the RP Act, 1951 had
been rendered meaningless.
The learned counsel, Mr. Nariman, would grant
that, under Article 84 (c) read with Article 327 and Entry 72 of the Union
List, it is within the legislative competence of Parliament to define or modify
the qualifications for the Member of Parliament by making law from time to
time. The Petitioners would even concede that the only way of ensuring the
representative character may not be by the State being represented by a person
"ordinarily resident" in that State which, according to them, was the
original method adopted, as reflected in Section 3 of RP Act, 1951 but other
links can be found. Thus, it is not disputed that the connection of
"residence" could from time to time be changed or amended when
circumstances so demanded.
The argument, however, is that Section 3 could
be amended by Parliament only so long as it mentioned some qualification for
representation of person to be elected as member of Council of States.
According to the petitioners, this must be done by putting in position some
other appropriate method of ensuring representation of a particular State in
the Council of States.
It has been submitted that the impugned
amendment had failed to provide alternative additional qualification, since any
citizen of India, resident anywhere in India, can now be elected by any State
Assembly even when he is ordinarily resident, and even when his registration as
an elector is, outside that State. No further additional qualifications are
provided to indicate his or her usefulness in the debates or discourses to take
place in the Council of States.
It is the contention of the petitioners that on
the assumption that there was need for laying down a criteria other than the
requirement of residence in a particular State, some different or alternative
qualification or method of representation could have been prescribed; such as
birth, education, carrying on business or working for gain in the place for a
period prescribed or doing philanthropic or charitable work in a State by
persons residing outside the State. They argue that some roots or some connection
had to be ensured to be existing so as to maintain the representative character
of the person to be elected as representative of the particular State.
But, it is the grievance of the petitioners that
by the impugned amendment a 'qualification' has been introduced which is not a
qualification at all, and which only means that anyone in India who is on the
electoral roll of any Parliamentary Constituency in India can be chosen by any
State Assembly in India as a representative of that State in the Council of
States.
Developing the above argument further, Mr.
Nariman submitted that, after the impugned amendment, there is "in
effect" no qualification prescribed by Parliament for the person elected
being a representative of the particular State, Assembly of which has elected
him, since he may be an elector in any Parliamentary Constituency "in
India", which according to the Counsel is not a qualification for the
person chosen by the particular State Assembly to be a "representative of"
that State. It is now left to the entire subjective determination of each State
Assembly, to elect any one, even one who is an elector (i.e. ordinarily
resident) in any other State or one who has no connection whatsoever with the
State that chooses him to be its representative in the Council of States.
It has been argued that by the impugned
amendment, Parliament has whilst purporting to set up "qualification"
for membership to the Council of States failed to have due regard to the
expression "representative of the State" in Article 80.
The contention is that by this amendment,
Parliament has in effect abdicated its allotted function under Article 84(4),
which had been examined when enacting Section 3 of the RP Act 1951 by defining
as to who would be the representatives of each State in the Council of States,
but this has now been left to be determined in each individual case by the
majority of Members of the State Assembly who elect a particular person i.e.
irrespective of whether or not the person chosen has any connection with the
State by birth, residence, performance of public duties or otherwise.
The argument is that the will of the State
assemblies on the issue as to who qualifies to be a representative of the State
within the meaning of the expression used in Article 80 is not sufficient or
good guide since the question of qualifications had been left by the
Constitution to be prescribed by the Parliament and not the members of State
Legislative Assemblies. To deny to the State assemblies reference to some
criteria prescribed by law by Parliament totally negates one important aspect
of federation in the Constitution viz. the effective representation of States
in the Council of States.
The arguments of the petitioners on above lines
do not impress us. It is all a matter relating to the legislative competence of
Parliament on which the challenge to the validity falls apart.
The Constitutional provisions dealing with
elections to the Council of States are, inter alia, contained in Articles 80
and 327. Article 80 (4) provides that elections to the Council of States shall
be by a system of proportional representation by means of a single transferable
vote by the elected members of the legislative assemblies of the States.
Article 327, inter alia, provides that subject to the provisions of the
Constitution, Parliament may "from time to time" by law make
provisions with respect to all matters relating to or in connection with
elections to either House of Parliament.
The above provisions leave no room for doubt
that the Constitution recognized the need for changes in the law relating to
elections from time to time and entrusted Parliament with the responsibility,
as also the requisite power, to bring in legislative measures as and when
required in such regard, which would include the power to amend the existing
measures. Should there be any doubt entertained by any quarter in this respect,
reference may be made to the case of Hari Prasad Mulshanker Trivedi v. V.B.
Raju & Ors. [(1974) 3 SCC 415: (1974) 1 SCR 548], wherein it has been held
by this Court that:- "Article 327 gives full power to Parliament subject
to the provisions of the Constitution to make laws with respect to all matters
relating to or in connection with elections including the preparation of
electoral rolls".
Parliament has the power, rather an exclusive
one, under Article 246 to make laws with respect to any of the matters
enumerated in the Union List of the Seventh Schedule. In exercise of the powers
conferred on it under Article 246 read with Articles 84 & 327 and Entry 72
of the Union List of the Seventh Schedule to the Constitution, it is a matter
for Parliament to decide by making law as to what qualifications
"other" than those prescribed in the Constitution be made compulsory
to be fulfilled by persons seeking to fill seats in the Council of States as
representatives of the States. It is provided in Article 80 (2) that allocation
of seats in the Council of States to be filled by the representatives of States
and the Union Territories shall be in accordance
with the provisions in that behalf contained in the Fourth Schedule. In Article
80 (4), it is provided that the representatives of each State shall be elected
by the elected Members of the Legislative Assembly of that State in accordance
with the system of proportional representation by means of a single
transferable vote.
Article 84 of the Constitution prescribes the
qualifications for membership of Parliament while Article 102 indicates the
disqualifications. Under the most relevant clause, Article 84 (c), it is for
Parliament to prescribe "such other qualifications" for membership of
the Council of States as it may deem necessary or proper; that is,
qualifications other than the two Constitutionally prescribed under Article
84(a) and (b), viz., citizenship of India and minimum age (not less than 30
years).
Apart from the above, the Constitution does not
put any restriction on the legislative powers of the Parliament in this regard.
If the Constitution had intended that the
"representatives" of the States must be residents of the State or
must have a link or nexus with the State from where the representatives are
chosen, that is, link or nexus of the kind mentioned by the petitioners, such a
provision would have been expressly made in this context as has been done in
respect of requirement of age and citizenship. In the absence of such express
requirement, the requirement of residence or any other nexus as a matter of
qualification cannot be read into Articles 80 or 84.
The fact that a candidate needs to be enrolled
in any parliamentary constituency in India does not deprive him of the locus to be the
representative of the State simply on the ground that he is not enrolled there.
In People's Union For Civil Liberties & Anr. v. Union of India & Anr.
[(2003) 4 SCC 399], this Court treated the right to vote to be carrying within
it the Constitutional right of freedom of expression. But the same cannot be
said about the right to stand for election, since that is a right regulated by
the statute.
Even without going into the debate as to whether
right to vote is a statutory or Constitutional right, 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. It is pure and simple a statutory right
that can be created and taken away by Parliament and, therefore, must always be
subject to statutory limitations.
In N.P. Ponnuswami v. Returning Officer,
Namakkal Constituency & Ors. [1952 SCR 218], this Court noticed with
approval the decision of Privy Council in Joseph Theberge & Anr. v.
Phillippe Laudry [(1876) 2 AC 102], and held that the right to stand as a
candidate for election is not a civil right, but is a creation of statute or
special law and must be subject to the limitations imposed by it. It was
observed in Paragraph 19 of the Judgment as under: - "The points which
emerge from this decision may be stated as follows:
-
"The right to vote
or stand as a candidate for election is not a civil right but is a creature of
statute or special law and must be subject to the limitations imposed by it.
-
Strictly speaking, it is
the sole right of the legislature to examine and determine all matters relating
to the election of its own members, and if the legislature takes it out of its
own hands and vests in a Special Tribunal an entirely new and unknown
jurisdiction, that special jurisdiction should be exercised in accordance with
the law which creates it."
(emphasis supplied) In the case of Hari Prasad
Mulshanker Trivedi (supra), it was reiterated that : - "The right
to stand for election is a statutory right and the statute can therefore
regulate the manner in which the right has to be enforced or the remedy for
enforcing it." Similar view was expressed by this Court once again in
Jyoti Basu v. Debi Ghosal, [(1982) 1 SCC 691], in following words:- "A
right to elect, fundamental though it is to democracy, is, anomalously enough,
neither a fundamental right nor a common law right. It is pure and simple, a
statutory right. So is the right to be elected. So is the right to dispute an
election. Outside of statute, there is no right to elect, no right to be
elected and no right to dispute an election. Statutory creations they are, and
therefore, subject to statutory limitation. An election petition is not an
action at common law, nor in equity. It is a statutory proceeding to which
neither the common law nor the principles of equity apply but only those rules
which the statute makes and applies. It is a special jurisdiction, and a
special jurisdiction has always to be exercised in accordance with the statute
creating it. Concepts familiar to common law and equity must remain strangers
to election law unless statutorily embodied.
A court has no right to resort to them on
considerations of alleged policy because policy in such matters as those,
relating to the trial of election disputes, is what the statute lays down. In
the trial of election disputes, court is put in a strait- jacket. Thus the
entire election process commencing from the issuance of the notification
calling upon a constituency to elect a member or members right up to the final
resolution of the dispute, if any, concerning the election is regulated by the
Representation of the People Act, 1951, different stages of the process being
dealt with by different provisions of the Act. There can be no election to
Parliament or the State Legislature except as provided by the Representation of
the People Act, 1951 and again, no such election may be questioned except in
the manner provided by the Representation of the People Act. So the
Representation of the People Act has been held to be a complete and
self-contained code within which must be found any rights claimed in relation
to an election or an election dispute. ........." (emphasis supplied) The
Constitution by Article 84 has prescribed qualifications for membership of
either House of Parliament.
Article 84 (c) does not make it compulsory for
Parliament to prescribe any qualification other than those prescribed by
Clauses (a) & (b). Parliament may or may not prescribe some such
qualifications, and having prescribed some may repeal them whenever it so
desires. It is difficult to accept the argument that once the Parliament
prescribes a qualification, it cannot revoke or repeal it. There is no such
limitation on Parliament's legislative power, which is confirmed by Entry 72 of
the Union List in the Seventh Schedule. The language of Clause (c) of Article
84 creates a power and not a duty. If it is not bound to prescribe any
additional qualification, it is also not bound to provide a substitute for the
one done away with.
The thrust of the argument of the petitioners is
that 'outsider' would be given preference to an 'insider'. This need not be
invariably the end result, since outcome of an election would depend on the
choice of the Electoral College, viz. the legislative assembly of the State,
than on any other factor. In any event, even if an 'outsider' is selected, it
is too far-fetched to contend that the "character" of the House would
consequently stand altered.
What has been essentially done by the amendment
is to provide that even a person registered as an elector outside the State can
contest the election to the Council of States from that State. The choice of
the electors has been widened and expanded by making this provision. If the
electors so chose, they can always choose a person who has link or nexus with
the State, that is link of the kind mentioned by the petitioners.
The argument that the amended Section 3 of RP
Act, 1951 is futile or that the impugned amendment makes Section 3 nugatory is
not correct. Whilst Article 84 prescribes citizenship of India as qualification for
membership Section 3, after the amendment, restricts qualification of member of
Council of States to an elector who is resident in India. This would exclude non
resident Indian citizens. This is also a significant restriction. It is,
therefore, clear that Section 3 continues to provide a qualification for
membership of the Council of States, namely that one has to be a citizen who is
a resident of India. All that the impugned amendment has done is to enlarge the scope
of consideration for election to the Council of States by removing the
restriction that persons qualified to stand would only be electors in the State
concerned. Having regard to the purpose for which the second chamber was
conceived, that is to say, to have representation of a wide spectrum of people
the amendment does not change the character of the Council of States.
The submission that the Parliament has
'abdicated' its obligations is not correct. In the first place, as has been
observed above, it was not obligatory on Parliament to enact a law regarding
qualifications or to frame any qualifications. It is important to note that,
even after the amendment,
-
the
electors remain the same, namely the State Assemblies;
-
the
elected persons remain representatives of the State; and
-
the
choice and the decision as to whom to elect continues to be with the State
Legislative Assemblies.
The field of consideration before the State
Assembly is enlarged. But the ultimate choice and decision is always that of
the State Legislatures. Therefore, if they decide to elect a person who is not
ordinarily a resident of the State they would do so with the full knowledge of
all circumstances and it would be their decision as to who should be the
representative of their State. This, by no stretch of reasoning, can be said to
be an abdication of the Parliament's obligations or functions.
Under the aforesaid Constitutional mandate,
Parliament has, inter alia, enacted the RP Acts of 1950 and 1951, as well as
the impugned amendment Act. By the impugned amendment Act, the requirement of
being a voter in a particular State has been done away with.
Thus, in our view the arguments raised by the
petitioners do not hold water. The impugned amendment to Section 3 of the RP
Act, 1951 cannot be assailed as unconstitutional. It passes muster in view of
legislative competence. It does not transgress the provisions of Part III of
the Constitution, nor for that matter any other provision, express or implied,
of the Constitution. The requirement of 'residence' cannot be read in Article
80(4) of the Constitution. The challenge thus must be repelled.
Issue No.II : Secrecy of Voting Section 59 provided
for the 'Manner of voting at elections' to be "by ballot in such manner as
may be prescribed". Section 94 made its prescription clear by marginal
note reading 'Secrecy of voting not to be infringed', giving immunity mainly to
the voter against compulsion to disclose by declaring, in no uncertain terms,
that "No witness or other person shall be required to state for whom he
has voted at an election". Section 128 made further provision for
insulating the right of the voter to secrecy of vote from onslaught and
arranging 'Maintenance of secrecy of voting' by making it an obligation of
every person entrusted with election duties to "maintain, and aid in
maintaining, the secrecy of the voting" and, unless so "authorized by
or under any law", not to "communicate to any person any information
calculated to violate such secrecy".
Through the impugned amendments a proviso each
has been added to Sections 59, 94 and 128, as noted in the beginning of the
judgment. These amendments have carved out an exception to the general rule of
secrecy for purposes of the elections for filling up a seat in the Council of
States, which is now to be held "by open ballot", thus no longer
subject to the principle of secret ballot.
Petitioners' submissions on Open Ballot and
Secrecy For filling the seats in Council of States, the amendments made in
Sections 59, 94 and 128 of the RP Act 1951 have introduced the concept of Open
Ballot in place of Secret Ballot.
It has been submitted that the right of secrecy
in the election of Members of Rajya Sabha is an essential part of democracy
that is based on free and fair elections. The voters should have freedom of
expressing their view through their votes. The impugned amendment violates the
right of secrecy by resorting to open ballot system that is nothing but a
political move by clique in political parties for their own achievement.
It is contended that the impugned amendments
violate the Fundamental Right under Article 19(1)(a) of the Constitution as
well as the provisions in the Representation of the People Act, 1951, Universal
Declaration of Human Rights and International Covenant on Civil and Political
Rights. The petitioners urge that Human Rights contained in Universal
Declaration of Human Rights and International Covenant on Civil and Political
Rights may be taken in aid of Fundamental Rights to elucidate them and to make
them more effective, as has been held in various cases. On the above premise,
it has been contended that, the amendments made in Sections 3, 59, 94 and 128,
are unconstitutional and violative of Article 19(1)(a) of the Constitution of
India.
Submission of Union of India on Open Ballot
& Secrecy The submission is that there is no constitutional requirement
that election to the Council of States be conducted "by secret
ballot", as has been expressly provided under Article 55(3) and Article
66(1) for elections to the offices of the President of India and the Vice
President of India respectively.
It has been submitted that it was pursuant to
the view expressed by the Ethics Committee of the Parliament in its report
dated 1st December, 1998, in the wake of "emerging trend of cross voting
in the Rajya Sabha and Legislative Council elections", for the elections
"by open ballot" to be examined that the Union of India incorporated
such provision through the impugned Act. In this context reference has been
made to the "influence of money power and muscle power in Rajya Sabha
elections" and also to the provisions contained in Tenth Schedule to the
Constitution. Union of India contends that after considering the available
material and report of the Ethics Committee, it had come to the conclusion that
"the secret ballot system had in fact become counter-productive and
opposed to the effective implementation of the principles of democratic
representation of States in the Rajya Sabha".
Further submission is that "secret ballot
is not an inflexible or mandatory procedure" for ensuring free and fair
elections in the country and so the provision for open ballot system has been
incorporated having regard to "the emerging trends in the election process
and as warranted by a rational, reasonable, democratic objective".
Union of India has also submitted copy of the
First Report of the Ethics Committee of Parliament, as adopted on 15th December,
1999 and published by the Rajya Sabha Secretariat, under the chairmanship of
Shri S.B. Chavan, which had recommended the open ballot system as follows: -
-
"The Committee has
also noted the emerging trend of cross-voting in the elections for Rajya Sabha
and the Legislative Councils in States. It is often alleged that large sums of
money and other considerations encourage the electorate for these two bodies to
vote in a particular manner leading sometimes to the defeat of the official
candidates belonging to their own political party. In order not to allow big
money and other considerations to play mischief with the electoral process, the
Committee is of the view that instead of secret ballot, the question of holding
the elections to Rajya Sabha and the Legislative Councils in States by open
ballot may be examined." The amendments brought about by Act 40 of 2003
which are also subject matter of challenge in these matters have already been
noticed.
Part V of the RP Act, 1951 relates to the
"Conduct of Elections". Chapter 4 of the said Part of the RP Act,
1951 covers the topic of "The Poll". Amongst others, it includes
Section 59 relating to the "manner of voting on elections".
Section 59 of RP Act, 1951 was amended twice in
the year 2003, firstly with effect from 22nd March, 2003 by the Election Laws
(Amendment) Act, 2003 (Act 24 of 2003) and then with effect from 28th August,
2003 by Act 40 of 2003 (the impugned amendment). The amendment through Act 24
of 2003 is not of much consequence for the present purposes and had only
substituted the words "and no votes shall be received by proxy" with
the words "and, save as expressly provided by this Act, no votes shall be
received by proxy".
The amendment through Act 40 of 2003 added a
proviso to Section 59 of RP Act, 1951, so as to provide for elections to fill
seats in the Council of States to be held "by open ballot".
Section 59, after amendment, reads as under: -
-
"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 the votes at every election to
fill a seat or seats in the Council of States shall be given by open
ballot." There were two other provisions of RP Act, 1951 that were amended
by Act 40 of 2003, which changes have been described as amendments
consequential to the amendment made to Section 59. These others provisions also
need to be noticed at this stage.
Part VI of the RP Act, 1951 relates to
"Disputes Regarding Elections". The election petitions lie under
these provisions to the High Courts. Chapter III of Part VI relates to the
"Trial of Election Petitions". Section 94 falling under this Chapter,
as originally enacted read as under :
"Secrecy of voting not to be infringed No
witness or other person shall be required to state for whom he has voted at an
election." The Act 40 of 2003 has added a proviso to the aforesaid
provision. The amended provision now reads as under: - "Secrecy of voting
not to be infringed 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." Part VII
of RP Act, 1951 relates to the "Corrupt Practices and Electoral
Offences". Chapter I defines "Corrupt Practice".
Chapter III relates to "Electoral
Offences". Section 128 falling in this Chapter, as originally enacted read
as under: -
-
"Maintenance
of secrecy of voting.
-
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.
-
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." Act 40 of 2003 has added a proviso to sub-section (1) so as to
carve out an exception in relation to the election to the Council of States.
After amendment, sub-section (1) of Section 128 reads as under :
-
"Maintenance
of secrecy of voting.
-
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." The cumulative effect of the amendments to Sections 59, 94 and
128 of RP Act, 1951, brought about by Act 40 of 2003 thus is that the elections
for filling up a seat in the Council of States is now to be held "by open
ballot". The requirement of maintenance of secrecy of voting is now made
subject to an exception mentioned in the proviso.
Free and Fair Elections The learned Counsel
representing the petitioners, while arguing on the challenge to the impugned
amendment respecting the secrecy of ballot in the election to fill the seats of
the representatives of the States in the Council of States again referred to
the 'basic structure' theory and submitted that democracy was part of the basic
features of the Constitution. They would submit that free and fair election was
a concept inherent in the democratic values adopted by our polity.
There cannot be any quarrel with these
preliminary propositions urged on behalf of the petitioners.
It has been authoritatively held, time and
again, by this Court that democracy is a basic feature of the Constitution of
India, one that is not amenable to the power of amendment of the Parliament
under the Constitution. It has also been the consistent view of this Court that
the edifice of democracy in this country rests on a system of free and fair
elections. These principles are discernible not only from the preamble, which
has always been considered as part of the Constitution, but also from its
various provisions. Should there be any doubt still lurking in any mind, the
following cases can be referred to, with advantage, in this context.
The views of Sikri, CJ in Kesavananda Bharati,
expressed in Paragraph 292, have been noticed, in extenso, earlier in the
context of plea regarding federalism. He has clearly referred to
"Republican and Democratic form of Government" as one of the features
constituting the basic structure of the Constitution.
In the same case, Shelat & Grover JJ, in
their separate judgment, also found "Republican and Democratic form of
government and sovereignty of the country" amongst "the basic
elements of the constitutional structure" as discernible from "the
historical background, the preamble, the entire scheme of the Constitution,
relevant provisions thereof including Article 368".
Hegde and Mukherjee JJ, observed in their
judgment that "the basic elements and fundamental features of the
Constitution" found "spread out in various other parts of the
Constitution" are also set out "in the provisions relating to the
sovereignty of the country, the Republican and the Democratic character of the
Constitution".
In the words of Jaganmohan Reddy, J in his
separate judgment, the "elements of the basic structure are indicated in
the Preamble and translated in the various provisions of the Constitution"
and the "edifice of our Constitution is built upon and stands on several
props" which, if removed would result in the Constitution collapsing and
which include the principles of 'Sovereign Democratic Republic' and
'Parliamentary democracy', a polity which is "based on a representative
system in which people holding opposing view to one another can be candidates
and invite the electorate to vote for them".
The views of this Court, as expressed in
Paragraph 264 of the judgment in Indira Nehru Gandhi have been extracted in
earlier part of this judgment. Suffice it to note here again that the law laid
down by the majority in Kesavananda Bharati (supra) was taken note of and on
the question "as to what are the basic structures of the
Constitution", it was found to "include supremacy of the
Constitution, democratic republican form of Government".
The following observations in Paragraph 198 of
the judgment in Indira Nehru Gandhi (supra) also need to be noticed as they are
relevant in the context of the principle that 'free and fair elections' lies at
the core of democracy: -
-
"This Court in the
case of Kesavananda Bharati held by majority that the power of amendment of the
Constitution contained in Article 368 does not permit altering the basic
structure of the Constitution. All the seven Judges who constituted the
majority were also agreed that democratic set-up was part of the basic
structure of the Constitution.
Democracy postulates that there should be
periodical elections, so that people may be in a position either to re-elect
the old representatives or, if they so choose, to change the representatives
and elect in their place other representatives. Democracy further contemplates
that the elections should be free and fair, so that the voters may be in a
position to vote for candidates of their choice.
Democracy can indeed function only upon the
faith that elections are free and fair and not rigged and manipulated, that
they are effective instruments of ascertaining popular will both in reality and
form and are not mere rituals calculated to generate illusion of defence to
mass opinion. Free and fair elections require that the candidates and their
agents should not resort to unfair means or malpractices as may impinge upon
the process of free and fair elections."
(emphasis supplied) Mohinder Singh Gill v. Chief
Election Commissioner [(1978) 1 SCC 405], is another case that is significant
in the present context. In Paragraph 2, the following words indicated the controversy
in the preface: -
-
"Every significant
case has an unwritten legend and indelible lesson.
This appeal is no exception, whatever its formal
result. The message, as we will see at the end of the decision, relates to the
pervasive philosophy of democratic elections which Sir Winston Churchill
vivified in matchless, words:
"At the bottom of all tributes paid to
democracy is the little man, walking into a little booth, with a little pencil,
making a little cross on a little bit of paper no amount of rhetoric or
voluminous discussion can possibly diminish the overwhelming importance of the
point." If we may add, the little, large Indian shall not be hijacked from
the course of free and fair elections by mob muscle methods, or subtle
perversion of discretion by men "dressed in little, brief authority".
For "be you ever so high, the law is above you"." The Court
spoke in Paragraph 23 about the philosophy of election in a democracy, which
reads as under: -
"Democracy is government by the people. It
is a continual participative operation, not a cataclysmic, periodic exercise.
The little man, in his multitude, marking his vote at the poll does a social
audit of his Parliament plus political choice of this proxy. Although the full
flower of participative Government rarely blossoms, the minimum credential of
popular Government is appeal to the people after every term for a renewal of
confidence. So we have adult franchise and general elections as constitutional
compulsions. "The right of election is the very essence of the
constitution" (Junius). It needs little argument to hold that the heart of
the Parliamentary system is free and fair elections periodically held, based on
adult franchise, although social and economic democracy may demand much more."
(emphasis supplied) Some of the important holdings were set down in Paragraph
92 of the aforementioned judgment "for convenience" and to
"synopsize the formulations". The holdings included the following: -
-
"The
Constitution contemplates a free and fair election and vests comprehensive
responsibilities of superintendence, direction and control of the conduct of
elections in the Election Commission. This responsibility may cover powers,
duties and functions of many sorts, administrative or other, depending on the circumstances.
-
Two limitations at least
are laid on its plenary character in the exercise thereof. Firstly, when
Parliament or any State Legislature has made valid law relating to or in
connection with elections, the Commission, shall act in conformity with, not in
violation of, such provisions but where such law is silent Article 324 is a
reservoir of power to act for the avowed purpose of, not divorced from, pushing
forward a free and fair election with expedition. Secondly, the Commission
shall be responsible to the rule of law, act bona fide and be amenable to the
norms of natural justice insofar as conformance to such canons can reasonably
and realistically be required of it as fairplay-in-action in a most important
area of the constitutional order viz. elections. Fairness does import an
obligation to see that no wrongdoer candidate benefits by his own wrong. To put
the matter beyond doubt, natural justice enlivens and applies to the specific
case of order for total re-poll, although not in full panoply but in flexible
practicability. Whether it has been complied with is left open for the
Tribunal's adjudication.
"(emphasis supplied) The case reported as
S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra [1980 Supp. SCC 53] is also
relevant for purposes at hand. While construing the provisions of the RP Act,
1951, this Court expressed the following views: -
"An Act to give effect to the basic feature
of the Constitution adumbrated and boldly proclaimed in the preamble to the
Constitution viz. the people of India constituting into a sovereign, secular,
democratic republic, has to be interpreted in a way that helps achieve the
constitutional goal. The goal on the constitutional horizon being of
democratic republic, a free and fair election, a fountain spring and
cornerstone of democracy, based on universal adult suffrage is the basic.
The regulatory procedure for achieving free and
fair election for setting up democratic institution in the country is provided
in the Act.
"(emphasis supplied) The case reported as
Kihoto Hollohan v. Zachillhu & Ors. [1992 Supp (2) SCC 651], also resulted
in similar views being reiterated by this Court in the following words: -
-
"Democracy is a
part of the basic structure of our Constitution; and rule of law, and free and fair
elections are basic features of democracy. One of the postulates of free and
fair elections is provision for resolution of election disputes as also
adjudication of disputes relating to subsequent disqualifications by an
independent authority" (emphasis supplied) That Parliamentary democracy is
part of the basic structure of the Constitution was reiterated by this Court in
P.V. Narasimha Rao's case (supra) in following words:
"As mentioned earlier, the object of the
immunity conferred under Article 105(2) is to ensure the independence of the
individual legislators. Such independence is necessary for healthy functioning
of the system of parliamentary democracy adopted in the Constitution.
Parliamentary democracy is a part of the basic
structure of the Constitution." In the case reported as Union of India v.
Association for Democratic Reforms & Anr. [(2002) 5 SCC 294], this court
reiterated as under: -
-
"Further, it is to
be stated that:
-
one of the basic
structures of our Constitution is "republican and democratic form of
government";
-
the election to the
House of the People and the Legislative Assembly is on the basis of adult
suffrage, that is to say, every person who is a citizen of India and who is not
less than 18 years of age on such date as may be fixed in that behalf by or
under any law made by the appropriate legislature and is not otherwise
disqualified under the Constitution or any law on the ground of non-residence,
unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to
be registered as a voter at any such election (Article 326);
-
holding of any asset
(immovable or movable) or any educational qualification is not the eligibility
criteria to contest election; and
-
under Article 324, the
superintendence, direction and control of the "conduct of all
elections" to Parliament and to the legislature of every State vests in
the Election Commission.
The phrase "conduct of elections" is
held to be of wide amplitude which would include power to make all necessary
provisions for conducting free and fair elections." (emphasis supplied) In
People's Union for Civil Liberties
(PUCL), this Court held that "It also requires to be well understood that
democracy based on adult franchise is part of the basic structure of the
Constitution." There can thus be no doubt about the fact that democracy is
a basic feature of the Constitution of India and the concept of democratic form
of government depends on a free and fair election system.
It is the contention of the writ petitioners
that free and fair election is a constitutional right of the voter, which
includes the right that a voter shall be able to cast the vote according to his
choice, free will and without fear, on the basis of information received. The
disclosure of choice or any fear or compulsion or even a political pressure
under a whip goes against the concept of free and fair election, and that
immunity from such fear or compulsion can be ensured only if the election is to
be held on the principle of "secret ballot".
These submissions need elaborate examination.
Right to vote a Constitutional/Fundamental
right The learned Counsel have submitted that right to vote in an election
under the Constitution of India, which includes the election of the
representatives of States in the Council of States, as per the provisions
contained in Article 80 (4), is a Constitutional right, if not a Fundamental
right.
Reliance has been placed in this context by the
petitioners on the Union of India v. Association for Democratic Reforms and
Anr. (supra) wherein this Court was considering the right of the voter to know
about the candidates contesting election. Having found that such a right
existed, it was observed in Paragraph 22 as under: -
"..In democracy, periodical elections are
conducted for having efficient governance for the country and for the benefit
of citizens voters. In a democratic form of government, voters are of utmost
importance. They have right to elect or re- elect on the basis of the
antecedents and past performance of the candidate. The voter has the choice of
deciding whether holding of educational qualification or holding of property is
relevant for electing or re-electing a person to be his representative. Voter
has to decide whether he should cast vote in favour of a candidate who is
involved in a criminal case. For maintaining purity of elections and a healthy
democracy, voters are required to be educated and well informed about the
contesting candidates."
(emphasis supplied) In Paragraph 46 of the
judgment, the legal and constitutional position emerging from the discussion
was summed up thus: -
-
"To maintain the
purity of elections and in particular to bring transparency in the process of
election, the Commission can ask the candidates about the expenditure incurred
by the political parties and this transparency in the process of election would
include transparency of a candidate who seeks election or re- election. In a
democracy, the electoral process has a strategic role. The little man of this
country would have basic elementary right to know full particulars of a
candidate who is to represent him in Parliament where laws to bind his liberty
and property may be enacted.
-
The right to get
information in democracy is recognised all throughout and it is a natural right
flowing from the concept of democracy. At this stage, we would refer to Article
19(1) and (2) of the International Covenant on Civil and Political Rights,
which is as under:
-
"Everyone shall
have the right to hold opinions without interference.
-
Everyone shall have the
right to freedom of expression; this right shall include freedom to seek,
receive and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any other
media of his choice."
-
Under our Constitution,
Article 19(1)(a) provides for freedom of speech and expression. Voter's speech
or expression in case of election would include casting of votes, that is to
say, voter speaks out or expresses by casting vote. For this purpose,
information about the candidate to be selected is a must.
Voter's (little man citizen's) right to know
antecedents including criminal past of his candidate contesting election for MP
or MLA is much more fundamental and basic for survival of democracy. The little
man may think over before making his choice of electing law-breakers as
law-makers." (emphasis supplied) This Court thus held in the
above-mentioned case that a proper disclosure of the antecedents by candidates
in an election in a democratic society might influence intelligently the
decisions made by the voters while casting their votes.
Casting of a vote by a mis-informed and
non-informed voter, or a voter having one sided information only, is bound to
affect the democracy seriously. This Court, therefore, gave certain directions
regarding the necessity of each candidate furnishing information.
The views expressed in Jyoti Basu (supra) have
already been extracted earlier. It may be noticed again that in that case this
Court had found that a "right to elect, fundamental though it is to
democracy, is, anomalously enough, neither a fundamental right nor a common law
right. It is pure and simple, a statutory right" and that "Outside of
statute, there is no right to elect, no right to be elected and no right to
dispute an election".
Certain amendments in the law were brought about
in the wake of the judgment of this Court in Union of India v. Assn. for
Democratic Reforms (supra). This Court proceeded to examine as to whether the
amendments were legal in People's Union for Civil Liberties (PUCL).
In People's Union for Civil Liberties, the above views in Jyoti
Basu's case were extracted by Shah, J. It may be added that same views were
also reiterated in Rama Kant Pandey v. Union of India [(1993) 2 SCC 438],
wherein it was said, "the right to vote or to stand as a candidate for
election is neither a fundamental nor a civil right".
The following observations of Shah, J. in
Paragraph 62 of the judgment in People's Union for Civil Liberties (PUCL)
(supra), need to be borne in mind: -
"Such a voter who is otherwise eligible to
cast vote to elect his representative has statutory right under the Act to be a
voter and has also a fundamental right as enshrined in Chapter III. ..If any
statutory provision abridges fundamental right, that statutory provision would
be void.
.. The right of an adult to take part in
election process either as a voter or a candidate could be restricted by a
valid law which does not offend constitutional provisions. ." In same
case, P.V. Reddi J., in his separate judgment observed as under in Paragraph 94:
-
" In a democratic republic, it is the will
of the people that is paramount and becomes the basis of the authority of the
Government. The will is expressed in periodic elections based on universal
adult suffrage held by means of secret ballot. Nothing is therefore more
important for sustenance of democratic polity than the voter making an
intelligent and rational choice of his or her representative. For this, the
voter should be in a position to effectively formulate his/her opinion and to
ultimately express that opinion through ballot by casting the vote. The
concomitant of the right to vote which is the basic postulate of democracy is
thus twofold: first, formulation of opinion about the candidates and second,
the expression of choice by casting the vote in favour of the preferred
candidate at the polling booth. The voter/citizen should have at least the
basic information about the contesting candidate, such as his involvement in
serious criminal offences. An enlightened and informed citizenry would
undoubtedly enhance democratic values.
Thus, the availability of proper and relevant
information about the candidate fosters and promotes the freedom of speech and
expression both from the point of view of imparting and receiving the
information. I would say that such information will certainly be conducive to
fairness in election process and integrity in public life. The disclosure of
information would facilitate and augment the freedom of expression both from
the point of view of the voter as well as the media through which the
information is publicized and openly debated." (emphasis supplied) In
Paragraph 95, he proceeded to observe as under: -
". As observed by this Court in Assn. for
Democratic Reforms case a voter "speaks out or expresses by casting
vote".
Freedom of expression, as contemplated by
Article 19(1)(a) which in many respects overlaps and coincides with freedom of
speech, has manifold meanings. It need not and ought not to be confined to
expressing something in words orally or in writing. The act of manifesting by
action or language is one of the meanings given in Ramanatha Aiyar's Law
Lexicon (edited by Justice Y.V. Chandrachud).
. Having regard to the comprehensive meaning of
the phrase "expression", voting can be legitimately regarded as a
form of expression. Ballot is the instrument by which the voter expresses his
choice between candidates or in respect to propositions; and his
"vote" is his choice or election, as expressed by his ballot (vide A
Dictionary of Modern Legal Usage, 2nd Edn., by A. Garner Bryan).
"Opinion expressed, resolution or decision
carried, by voting" is one of the meanings given to the expression
"vote" in the New Oxford Illustrated Dictionary.
It is well settled and it needs no emphasis that
the fundamental right of freedom of speech and expression should be broadly
construed and it has been so construed all these years. In the light of this,
the dictum of the Court that the voter "speaks out or expresses by casting
a vote" is apt and well founded. I would only reiterate and say that
freedom of voting by expressing preference for a candidate is nothing but
freedom of expressing oneself in relation to a matter of prime concern to the
country and the voter himself."(emphasis supplied) After referring to the
view expressed in Jyoti Basu v. Debi Ghosal (supra) that the right to elect is
"neither a fundamental right nor a common law right" but "pure
and simple, a statutory right", Reddi J. in Paragraph 97 of the judgment
further observed as under: -
" With great reverence to the eminent
Judges, I would like to clarify that the right to vote, if not a fundamental
right, is certainly a constitutional right. The right originates from the
Constitution and in accordance with the constitutional mandate contained in
Article 326, the right has been shaped by the statute, namely the RP Act. That,
in my understanding, is the correct legal position as regards the nature of the
right to vote in elections to the House of the People and Legislative
Assemblies. It is not very accurate to describe it as a statutory right, pure
and simple. Even with this clarification, the argument of the learned
Solicitor-General that the right to vote not being a fundamental right, the
information which at best facilitates meaningful exercise of that right cannot
be read as an integral part of any fundamental right, remains to be squarely
met. Here, a distinction has to be drawn between the conferment of the right to
vote on fulfilment of requisite criteria and the culmination of that right in
the final act of expressing choice towards a particular candidate by means of
ballot. Though the initial right cannot be placed on the pedestal of a fundamental
right, but, at the stage when the voter goes to the polling booth and casts his
vote, his freedom to express arises. The casting of vote in favour of one or
the other candidate tantamounts to expression of his opinion and preference and
that final stage in the exercise of voting right marks the accomplishment of
freedom of expression of the voter. That is where Article 19(1)(a) is
attracted. Freedom of voting as distinct from right to vote is thus a species
of freedom of expression and therefore carries with it the auxiliary and
complementary rights such as right to secure information about the candidate
which are conducive to the freedom.
."(emphasis supplied) Dharmadhikari, J.,
agreed with Shah, J. and in his separate judgment observed thus: - "129.
Democracy based on "free and fair elections" is considered as a basic
feature of the Constitution in the case of Kesavananda Bharati. Lack of
adequate legislative will to fill the vacuum in law for reforming the election
process in accordance with the law declared by this Court in the case of Assn.
for Democratic Reforms obligates this Court as an important organ in
constitutional process to intervene." The argument of the petitioners is
that the majority view in the case of People's Union for Civil Liberties, therefore, was that a
right to vote is a constitutional right besides that it is also a facet of
fundamental right under Article 19(1)(a) of the Constitution.
We do not agree with the above submission. It is
clear that a fine distinction was drawn between the right to vote and the
freedom of voting as a species of freedom of expression, while reiterating the
view in Jyoti Basu v. Debi Ghosal (supra) that a right to elect, fundamental
though it is to democracy, is neither a fundamental right nor a common law
right, but pure and simple, a statutory right.
Even otherwise, there is no basis to contend
that the right to vote and elect representatives of the State in the Council of
States is a Constitutional right. Article 80 (4) merely deals with the manner
of election of the representatives in the Council of States as an aspect of the
composition of the Council of States. There is nothing in the Constitutional
provisions declaring the right to vote in such election as an absolute right
under the Constitution.
Arguments based on Legislative Privileges and
Tenth Schedule Be that as it may, the moot contention that has been raised by
the petitioners is that the election of members of the Council of States is
provided for in the Constitution and, therefore, is a part of the Constitution
and that it is inherent requirement of the principle of free and fair election
that the right to vote be invariably accompanied by the right of secrecy of
vote so as to ensure that the freedom of expression through vote is real.
Arguments based on Legislative Privileges and
Tenth Schedule It is the contention of Mr. Rao that apart from Article
19(1)(a), freedom of voting is Constitutionally guaranteed to a Member of a
Legislative Assembly by Article 194 (1) & (2) in absolute terms. While the
right under Article 19(1)(a) is subject to reasonable restrictions that may be
imposed by law under Article 19(2), the freedom to vote under Article 194(1)
and (2) is absolute. He would refer to Special Reference No.1 of 1964 [(1965) 1
SCR 413] and Tej Kiran Jain & Ors. V. N. Sanjiva Reddy & Ors. [(1971) 1
SCR 612].
Article 194 relates to the "Powers,
privileges, etc., of the Houses of Legislatures and of the members and
committees thereof". It is akin to the provisions contained in Article 105
that pertain to "Powers, privileges, etc., of the Houses of Parliament and
of the members and committees thereof". It would be proper to take a look
at the provisions in question.
Articles 105 and 194 run as follows :-
-
".Powers,
privileges, etc., of the Houses of Parliament and of the members and committees
thereof.
-
Subject to the
provisions of this Constitution and to the rules and standing orders regulating
the procedure of Parliament, there shall be freedom of speech in Parliament.
-
No member of Parliament
shall be liable to any proceedings in any court in respect of anything said or
any vote given by him in Parliament or any committee thereof, and no person
shall be so liable in respect of the publication by or under the authority of
either House of Parliament of any report, paper, votes or proceedings.
-
In other respects, the
powers, privileges and immunities of each House of Parliament, and of the
members and the committees of each House, shall be such as may from time to
time be defined by Parliament by law, and, until so defined, shall be those of
that House and of its members and committees immediately before the coming into
force of Section 15 of the Constitution (Forty- fourth Amendment) Act, 1978.
-
The provisions of
clauses (1), (2) and (3) shall apply in relation to persons who by virtue of
this Constitution have the right to speak in, and otherwise to take part in the
proceedings of, a House of Parliament or any committee thereof as they apply in
relation to members of Parliament."
-
"Powers,
privileges, etc., of the Houses of Legislatures and of the members and
committees thereof.
-
Subject to the
provisions of this Constitution and to the rules and standing orders regulating
the procedure of the Legislature, there shall be freedom of speech in the
Legislature of every State.
-
No member of the
Legislature of a State shall be liable to any proceedings in any court in
respect of anything said or any vote given by him in the Legislature or any
committee thereof, and no person shall be so liable in respect of the
publication by or under the authority of a House of such a Legislature of any
report, paper, votes or proceedings.
-
In other respects, the
powers, privileges and immunities of a House of the Legislature of a State, and
of the members and the committees of a House of such Legislature, shall be such
as may from time to time be defined by the Legislature by law, and, until so
defined, shall be those of that House and of its members and committees
immediately before the coming into force of Section 26 of the Constitution
(Forty-fourth Amendment) Act, 1978].
-
The provisions of
clauses (1), (2) and (3) shall apply in relation to persons who by virtue of
this Constitution have the right to speak in, and otherwise to take part in the
proceedings of, a House of the Legislature of a State or any committee thereof
as they apply in relation to members of that Legislature." In Special
Reference No.1 of 1964 [(1965) 1 SCR 413], this Court examined the provisions
contained in Article 194.
The issues concerned the constitutional
relationship between the High Court and the State Legislature. The President of
India had made a Reference under Article 143(1) to this Court against the
backdrop of a dispute involving the Legislative Assembly of the State of Uttar Pradesh and two Judges of the
High Court. The factual matrix of the case would show that the State Assembly
had committed an individual to prison for its contempt. The prisoner had
preferred a petition under Article 226 on which the judges of the High Court
had ordered his release on interim bail. The State Assembly found that in
entertaining the petition and granting bail, the judges of the High Court had
also committed contempt of the State Legislature and thus issued process,
amongst others, against the said two High Court Judges.
This Court found that Article 194 (1) makes it
clear that "the freedom of speech in the Legislature of every State which
it prescribes, is subject to the provisions of the Constitution, and to the
rules and standing orders, regulating the procedure of the Legislature"
and that while interpreting the said clause "it is necessary to emphasize
that the provisions of the Constitution subject to which freedom of speech has
been conferred on the legislators, are not the general provisions of the
Constitution but only such of them as relate to the regulation of the procedure
of the Legislature". In this view, it was the opinion of this Court that
while Article 194 (1) "confers freedom of speech on the legislators within
the legislative chamber", Article 194(2) "makes it plain that the
freedom is literally absolute and unfettered." In Tej Kiran Jain v. N.
Sanjiva Reddy (supra), the issue was as to whether proceedings could be taken
in a court of law in respect of what was said on the floor of Parliament in
view of Article 105(2) of the Constitution. It arose out of a suit for damages
being filed against the respondents on the allegation that they had made
defamatory statements on the floor of the Lok Sabha during a Calling Attention Motion
against Shankaracharya. The High Court had ruled against the proposition.
Reference was made in appeal to an observation of this Court in Special
Reference No.1 of 1964, where this Court dealing with the provisions of Article
212 of the Constitution had pointed out that the immunity under that Article
was against an alleged irregularity of procedure but not against an illegality,
and contended that the same principle should be applied to determine whether
what was said was outside the discussion on a Calling Attention Motion.
It was submitted that the immunity granted by
Article 105 (2) was to what was relevant to the business of Parliament and not
to something that was utterly irrelevant.
This Court, dealing with the contentions of the
appellants, held as under: - "In our judgment it is not possible to read
the provisions of the article in the way suggested. The article means what it
says in language which could not be plainer.
The article confers immunity inter alia in
respect of "anything said ... in Parliament". The word
"anything" is of the widest import and is equivalent to
"everything". The only limitation arises from the words "in
Parliament" which means during the sitting of Parliament and in the course
of the business of Parliament. We are concerned only with speeches in Lok
Sabha. Once it was proved that Parliament was sitting and its business was
being transacted, anything said during the course of that business was immune
from proceedings in any Court this immunity is not only complete but is as it
should be. It is of the essence of parliamentary system of Government that
people's representatives should be free to express themselves without fear of
legal consequences. What they say is only subject to the discipline of the
rules of Parliament, the good sense of the members and the control of
proceedings by the Speaker. The Courts have no say in the matter and should
really have none." (emphasis supplied) It is the contention of the learned
counsel that the same should be the interpretation as to the scope and tenor of
the provision contained in Article 194 (2) concerning the privileges of the
Members of the Legislative Assemblies of the States who constitute State wise
electoral colleges for electing representatives of each State in the Council of
States under the provisions of Article 80 (4). The counsel argue that the
freedom of expression without fear of legal consequences as flowing from
Article 194(2) should inure to the Members of the Legislative Assemblies while
discharging their function as electoral college under Article 80(4).
This argument, though attractive, does not
deserve any credence in the context at hand. The proceedings concerning
election under Article 80 are not proceedings of the "House of the
Legislature of State" within the meaning of Article 194. It is the elected
members of the Legislative Assembly who constitute, under Article 80 the
Electoral College for electing the representative of the State to fill the seat
allocated to that State in the Council of States. It is noteworthy that it is
not the entire Legislative Assembly that becomes the Electoral College, but
only the specified category of members thereof.
When such members assemble at a place, they do
so not to discharge functions assigned under the Constitution to the
Legislative Assembly. Their participation in the election is only on account of
their ex-officio capacity of voters for the election.
Thus, the act of casting votes by each of 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.
It is time to take up the arguments based on the
Tenth Schedule.
Tenth Schedule was added to the Constitution by
the Constitution (Fifty-second Amendment) Act, 1985, with effect from 1st March 1985. The purpose of the
said amendment as declared in the Objects and Reasons was to combat the
"evil of political defections" which have been "a matter of
national concern" and which menace has the potency to "undermine the
very foundations of our democracy and the principles which sustain it".
The said amendment also added sub-Articles (2)
to Article 102 and 191 that pertained to Disqualifications for membership of
the Houses of Parliament and Houses of State Legislature respectively.
Paragraph 1 (a) of the Tenth Schedule also confirms its application to
"House" which has been defined to mean "either House of
Parliament or the Legislative Assembly or, as the case may be, either House of
the Legislature of a State". The new sub-Articles declared, in identical
terms, that a "person shall be disqualified for being a member" of
either of the said Houses "if he is so disqualified under the Tenth
Schedule". Paragraph 2 of the Tenth Schedule, to the extent germane here,
may be extracted as under : -
-
"Disqualification
on ground of defection.
-
Subject to the
provisions of paragraphs 4 and 5, a member of a House belonging to any
political party shall be disqualified for being a member of the House
-
XXXXXXX; or
-
if he votes or abstains
from voting in such House contrary to any direction issued by the political
party to which he belongs or by any person or authority authorised by it in
this behalf, without obtaining, in either case, the prior permission of such
political party, person or authority, and such voting or abstention has not
been condoned by such political party, person or authority within fifteen days
from the date of such voting or abstention.
Explanation.For the purposes of this sub-paragraph,
-
an elected member of a
House shall be deemed to belong to the political party, if any, by which he was
set up as a candidate for election as such member;
-
a nominated member of a
House shall,
-
where
he is a member of any political party on the date of his nomination as such
member, be deemed to belong to such political party;
-
in
any other case, be deemed to belong to the political party of which he becomes,
or, as the case may be, first becomes, a member before the expiry of six months
from the date on which he takes his seat after complying with the requirements
of Article 99 or, as the case may be, Article 188.
XXXXXXXXX "It is the contention of the
petitioners that the fact that election to fill the seats in the Council of
States by the legislative assembly of the State involves 'voting', the
principles of Tenth Schedule are attracted. They argue that the application of
the Tenth Schedule itself shows that open ballot system tends to frustrate the
entire election process, as also its sanctity, besides the provisions of the
Constitution and the RP Act. They submit that the open ballot system, coupled
with the looming threat of disqualification under the Tenth Schedule reduces
the election to a political party issuing a whip and the candidate being
elected by a show of strength.
This, according to the petitioners, will result
in people with moneybags occupying the seats in the Council of States.
The respondents opposing the petitions would, on
the other hand, argue that the Tenth Schedule does not apply to the election in
the Council of States. Its application is restricted to the proceedings in the
House of Legislature and it has no application to the election conducted under
the RP Act.
Nonetheless, learned Counsel would argue, the
principles behind making the elections by open ballot furthers the
Constitutional provisions in the Tenth Schedule.
It has to be borne in mind that the party system
is well recognized in Indian context. Sections 29-A to 29-C of the RP Act, 1951
speak of registration of political parties and some of their privileges &
obligations.
In S.R. Bommai, this Court ruled as under: -
-
"What is further and
this is an equally, if not more important aspect of our Constitutional law we
have adopted a pluralist democracy. It implies, among other things, a
multi-party system.
Whatever the nature of federalism, the fact
remains that as stated above, as per the provisions of the Constitution, every
State is constituent political unit and has to have an exclusive Executive and
Legislature elected and constituted by the same process as the Union
Government.
Under our political and electoral system,
political parties may operate at the State and national level or exclusively at
the State level. There may be different political parties in different States
and at the national level. Consequently, situations may arise, as indeed they
have, when the political parties in power in various States and at the Centre
may be different. It may also happen as has happened till date that through
political bargaining, adjustment and understanding, a State level party may
agree to elect candidates of a national level party to Parliament and vice
versa.
This mosaic of variegated pattern of political
life is potentially inherent in a pluralist multi-party democracy like ours.
Hence the temptation of the political party or
parties in power (in a coalition Government) to destabilise or sack the
Government in the State not run by the same political party or parties is not
rare and in fact the experience of the working of Article 356(1) since the
inception of the Constitution, shows that the State Governments have been
sacked and the Legislative Assemblies dissolved on irrelevant, objectionable
and unsound grounds. So far the power under the provision has been used on more
than 90 occasions and in almost all cases against Governments run by political
parties in opposition. If the fabric of pluralism and pluralist democracy and
the unity and integrity of the country are to be preserved, judiciary in the
circumstances is the only institution which can act as the saviour of the
system and of the nation." (emphasis supplied) Some of the observations
appearing at pages 485-486 in Kesavananda Bharati are also relevant and are
extracted hereunder: -
"Further a Parliamentary Democracy like
ours functions on the basis of the party system. The mechanics of operation of
the party system as well as the system of Cabinet Government are such that the
people as a whole can have little control in the matter of detailed law-making.
" on practically every issue in the modern State, the serried millions of
voters cannot do more than accept or reject the solutions offered. The stage is
too vast to permit of the nice shades of quantitative distinctions impressing
themselves upon the public mind. It has rarely the leisure, and seldom the
information, to do more than indicate the general tendency of its will. It is
in the process of law-making that the subtler adjustments must be
effected." (Laski: A Grammar of Politics, Fifth Edn., pp. 313-314)."
(emphasis supplied) The Tenth Schedule of the Constitution recognizes the
importance of the political parties in our democratic set-up, especially when
dealing with Members of the Houses of Parliament and the Legislative Assemblies
or Councils. The validity of the Tenth Schedule was challenged on various
grounds, inter alia, that a political party is not a democratic entity and the
imposition of whips on Members of Parliament was not in accordance with the
Constitutional scheme.
Rejecting this argument, this Court held that it
was open for Parliament to provide that its Members, who have been elected on a
party ticket, act according to the decisions made by the party and not against
it.
In Kihoto Hollohan v. Zachillhu (supra), it was
held that: -
-
"Parliamentary
democracy envisages that matters involving implementation of policies of the
government should be discussed by the elected representatives of the people.
Debate, discussion and persuasion are, therefore, the means and essence of the
democratic process.
During the debates the Members put forward
different points of view. Members belonging to the same political party may
also have, and may give expression to, differences of opinion on a matter. Not
unoften the views expressed by the Members in the House have resulted in substantial
modification, and even the withdrawal, of the proposals under consideration.
Debate and expression of different points of view, thus, serve an essential and
healthy purpose in the functioning of Parliamentary democracy.
At times such an expression of views during the
debate in the House may lead to voting or abstinence from voting in the House
otherwise than on party lines.
-
But a political party
functions on the strength of shared beliefs. Its own political stability and
social utility depends on such shared beliefs and concerted action of its
Members in furtherance of those commonly held principles. Any freedom of its
Members to vote as they please independently of the political party's declared
policies will not only embarrass its public image and popularity but also
undermine public confidence in it which, in the ultimate analysis, is its
source of sustenance nay, indeed, its very survival. Intra-party debates are
of course a different thing.
But a public image of disparate stands by
Members of the same political party is not looked upon, in political tradition,
as a desirable state of things. Griffith and Ryle on Parliament Functions,
Practice and Procedure (1989 edn., p. 119) say:
"Loyalty to party is the norm, being based
on shared beliefs.
A divided party is looked on with suspicion by
the electorate. It is natural for Members to accept the opinion of their
Leaders and Spokesmen on the wide variety of matters on which those Members
have no specialist knowledge. Generally Members will accept majority decisions
in the party even when they disagree. It is understandable therefore that a
Member who rejects the party whip even on a single occasion will attract
attention and more criticism than sympathy. To abstain from voting when
required by party to vote is to suggest a degree of unreliability. To vote
against party is disloyalty. To join with others in abstention or voting with
the other side smacks of conspiracy." (emphasis supplied) Clause (b) of
sub-para (1) of Paragraph 2 of the Tenth Schedule gives effect to this
principle and sentiment by imposing a disqualification on a Member who votes or
abstains from voting contrary to "any directions" issued by the
political party.
The provision, however, recognises two
exceptions: one when the Member obtains from the political party prior
permission to vote or abstain from voting and the other when the Member has
voted without obtaining such permission but his action has been condoned by the
political party. This provision itself accommodates the possibility that there
may be occasions when a Member may vote or abstain from voting contrary to the
direction of the party to which he belongs. This, in itself again, may provide
a clue to the proper understanding and construction of the expression "any
direction" in clause (b) of Paragraph 2(1) whether really all directions
or whips from the party entail the statutory consequences or whether having
regard to the extraordinary nature and sweep of the power and the very serious
consequences that flow including the extreme penalty of disqualification the
expression should be given a meaning confining its operation to the contexts
indicated by the objects and purposes of the Tenth Schedule. We shall deal with
this aspect separately." (emphasis supplied) In Paragraph 122, this Court
proceeded to hold as under:-
-
While
construing Paragraph 2(1)(b) it cannot be ignored that under the Constitution
Members of Parliament as well as of the State legislature enjoy freedom of
speech in the House though this freedom is subject to the provisions of the
Constitution and the rules and standing orders regulating the Procedure of the
House [Article 105(1) and Article 194(1)]. The disqualification imposed by
Paragraph 2(1)(b) must be so construed as not to unduly impinge on the said
freedom of speech of a Member. This would be possible if Paragraph 2(1)(b) is
confined in its scope by keeping in view the object underlying the amendments
contained in the Tenth Schedule, namely, to curb the evil or mischief of
political defections motivated by the lure of office or other similar
considerations. The said object would be achieved if the disqualification
incurred on the ground of voting or abstaining from voting by a member is
confined to cases where a change of government is likely to be brought about or
is prevented, as the case may be, as a result of such voting or abstinence or
when such voting or abstinence is on a matter which was a major policy and
programme on which the political party to which the Member belongs went to the polls.
For this purpose the direction given by the political party to a Member
belonging to it, the violation of which may entail disqualification under
Paragraph 2(1)(b), would have to be limited to a vote on motion of confidence
or no confidence in the government or where the motion under consideration
relates to a matter which was an integral policy and programme of the political
party on the basis of which it approached the electorate. The voting or
abstinence from voting by a Member against the direction by the political party
on such a motion would amount to disapproval of the programme on the basis of
which he went before the electorate and got himself elected and such voting or
abstinence would amount to a breach of the trust reposed in him by the electorate."
(emphasis supplied) It is not without significance that, barring the exception
in case of independents, which are few and far between, experience has shown
that it is the political parties that mostly set up the members of legislatures
at the Centre or in the States. We may also refer to the nomination papers
prescribed under the Conduct of Election Rules, 1961 for election to the
Council of States, being Form 2-C, or for election to the State Legislative
Assembly, being Form 2B, each of which require a declaration to be made by the
candidate as to particulars of the political party that has set him up in the
election. This declaration binds the elected legislators in the matter of
allegiance to the political party in all matters including, and we find the
Attorney General is not wrong in so submitting, the support of the party to a
particular candidate in election to the Council of States. Yet, in view of the
law laid down in Kihoto Hollohan v. Zachillhu (supra), it is not correct to
contend that the open ballot system tends to expose the members of the
Legislative Assembly to disqualification under the Tenth Schedule since that
part of the Constitution is meant for different purposes.
International Conventions The counsel for the
petitioners have also submitted that International Instruments put emphasis on
"secret ballot" since it lays the foundation for ensuring free and
fair election which in turn ensures a democratic government showing the true
will of the people. The significance of this emphasis lies in the recognition
that it is a democratic Government that is ultimately responsible for
protecting the Human Rights of the people, viz., civil, political, social and
economic rights.
In above context, reference was made to the
Universal Declaration of Human Rights and International Convention on Civil and
Political Rights (ICCPR).
Universal Declaration of Human Rights, through
Article 21 provides as under: -
-
"Everyone has the
right to take part in the government of his country, directly or through freely
chosen representatives.
-
Everyone has the right
of equal access to public service in his country.
-
The will of the people
shall be the basis of the authority of government; this will shall be expressed
in periodic and genuine elections which shall be by universal and equal
suffrage and shall be held by secret vote or by equivalent free voting
procedures.
"International Convention on Civil and
Political Rights (ICCPR), in its Article 25 provides as under: - "Every
citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:
-
To take part in the
conduct of public affairs, directly or through freely chosen representatives;
-
To vote and to be
elected at genuine periodic elections which shall be by universal and equal
suffrage and shall be held by secret ballot, guaranteeing the free expression
of the will of the electors;
-
To have access, on
general terms of equality, to public service in his country."
Both the documents, thus, provide for formation
of a government through secret ballot. Prime importance is given in these two
Human Rights instruments on "will of the electors" giving basis to
the authority of Government. It may however be noticed that in Article 21 of Universal
Declaration of Human Rights the requirement is satisfied not necessarily by
secret ballot but even "by equivalent free voting procedures". The
learned counsel would also rely upon the instrument called Inter-American
Convention, in which the principles of the Secret Ballot System, as free
expression of the will of voter have been accepted.
Mr. Sachar pointed out that the above mentioned
expressions were added in Article 25 (b) of ICCPR in the wake of one view of
participatory countries in the Third Committee, 16th Session (1961) to the
effect: - "Others held that 'genuine periodic elections', 'universal and
equal suffrage' and 'secret ballot' were the elements of genuine elections,
which in turn guaranteed the free expression of the will of the electors
(A/C.3/SR.1096, $ 36 (CL), $55(CHI), $63 & $75-76 (UAR), $66 (RL)]. These
elements should therefore remain grouped together." The learned counsel
was at pains to argue that the international instructions can be used for
interpreting the municipal laws and in support of his plea he would repeatedly
refer to His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala
& Anr. [(1973) 4 SCC 225]; Jolly George Varghese & Anr. v. The Bank of Cochin [(1980) 2 SCC 360];
People's Union for Civil Liberties
(PUCL) v. Union of India & Anr.
[(1997) 1 SCC 301];
Nilabati Behera v. State of Orissa & Ors.
[1993 (2) SCC 746]; Kapila Hingorani v. State of Bihar [2003 (6) SCC 1] and State of W.B. v. Kesoram Industries
Ltd. & Ors. [(2004) 10 SCC 201].
According to Mr. Sachar, the emphasis in the
aforementioned judgments is that evolving jurisprudence of human rights is
required to be used in interpreting the Statutes. This argument is in addition
to the general argument that in the absence of any law, this Court may lay down
guidelines in consonance with the principles laid down in the International
Instruments so as to effectuate the Fundamental Rights guaranteed under the
Constitution.
There can be no quarrel with the proposition
that the International Covenants and Declarations as adopted by the United
Nations have to be respected by all signatory States and the meaning given to
them have to be such as would help in effective implementation of the rights
declared therein. The applicability of the Universal Declaration of Human
Rights and the principles thereof may have to be read, if need be, into the
domestic jurisprudence.
It was said as early as in Kesavananda Bharati
v. State of Kerala (supra) that "in view of Article 51 of the directive
principles, this Court must interpret language of the Constitution, if not
intractable, which is after all a municipal law, in the light of the United
Nations Charter and solemn declaration subscribed to by India." But then,
the law on the subject as settled in India is clear enough as to render it not necessary
for this Court to look elsewhere to deal with the issues that have been raised
here. Further, in case of conflict, the municipal laws have to prevail.
Secrecy of Vote requisite for free and fair
election The learned Counsel for the petitioners have submitted that the
secrecy of voting has always been the hallmark of the concept of free and fair
election, so very essential in the democratic principles adopted as our polity.
They submit that this is the spirit of our constitutional law and also
universally accepted norm and that any departure in this respect impinges on
the fundamental rights, in particular freedom of expression by the voter.
Reference has been made to the case of S.
Raghbir Singh Gill v. S. Gurcharan Singh Tohra, [1980 Supp SCC 53], in which
appeal the core problem concerned the issue as to whether "Purity of
election and secrecy of ballot, two central pillars supporting the edifice of
parliamentary democracy envisioned in the Constitution" stand in confrontation
with each other or are complementary to each other.
The case of S. Raghbir Singh Gill v. S.
Gurcharan Singh Tohra (supra) pertained to the period anterior to the impugned
amendment. As noticed earlier, Section 94 of the RP Act, 1951, as it then
stood, made provision for ensuring that "Secrecy of voting" is not
infringed in any election. In order to do this, the provision would make every
witness or other person immune from being "required to state for whom he
has voted at an election." This Court found in the aforementioned case
that Section 94 could not be interpreted or examined in isolation and that its
scope, ambit and underlying object must be ascertained in the context of the
Act in which it finds its place viz. the RP Act, 1951 and further in the
context of the fact that this Act itself was enacted in exercise of power
conferred by the Articles in Part XV titled "Elections" in the
Constitution. It was the view of this Court that "Any interpretation of
Section 94 must essentially subserve the purpose for which it is enacted. The
interpretative process must advance the basic postulate of free and fair
election for setting up democratic institution and not retard it. Section 94
cannot be interpreted divorced from the constitutional values enshrined in the
Constitution".
This Court ruled thus: - "13. Secrecy of
ballot undoubtedly is an indispensable adjunct of free and fair elections. A
voter had to be statutorily assured that he would not be compelled to disclose
by any authority as to for whom he voted so that a voter may vote without fear
or favour and is free from any apprehension of its disclosure against his will
from his own lips. .. As Section 94 carves out an exception to Section 132 of
the Evidence Act as also to Section 95 of the Act it was necessary to provide
for protection of the witness if he is compelled to answer a question which may
tend to incriminate him. Section 95 provides for grant of a certificate of
indemnity in the circumstances therein set out. A conspectus of the relevant
provisions of the Evidence Act and Sections 93, 94 and 95 of the Act would
affirmatively show that they provide for a procedure, including the procedure
for examination of witnesses, their rights and obligations in the trial of an
election petition. The expression "witness" used in the section is a
pointer and further expression "other person" extends the protection
to a forum outside courts. ".
(emphasis supplied) After taking note of,
amongst other provisions, Section 94 and 128 of the RP Act, 1951 and the Rules
23(3), 23(5)(a) & (b), 31(2), 38(4), 39(1), (5), (6) & (8), second
proviso to 40(1), 38-A (4), 39-A (1) & (2) as contained in the Conduct of
Election Rules, 1961 ("Rules" for short) and similar other rules,
this Court found that while seeking to provide for maintaining secrecy of
ballot, they were meant "to relieve a person from a situation where he may
be obliged to divulge for whom he has voted under testimonial compulsion".
It was then observed in Paragraph 14 that: - ". Secrecy of ballot can be
appropriately styled as a postulate of constitutional democracy. It enshrines a
vital principle of parliamentary institutions set up under the Constitution. It
subserves a very vital public interest in that an elector or a voter should be
absolutely free in exercise of his franchise untrammelled by any constraint
which includes constraint as to the disclosure. A remote or distinct
possibility that at some point a voter may under a compulsion of law be forced
to disclose for whom he has voted would act as a positive constraint and check
on his freedom to exercise his franchise in the manner he freely chooses to
exercise. Therefore, it can be said with confidence that this postulate of
constitutional democracy rests on public policy." (emphasis supplied) It
was thus held that secrecy of ballot, a basic postulate of constitutional
democracy, was "formulated not in any abstract situation or to be put on a
pedestal and worshipped but for achieving another vital principle sustaining
constitutional democracy viz. free and fair election".
This Court found that Section 94 was meant as a
privilege of the voter to protect him against being compelled to divulge
information as to for which candidate he had voted.
Nothing prevents the voter if he chooses to open
his lips of his own free will without direct or indirect compulsion and waive
the privilege. It was noticed that the provision refers to a "witness or
other person". Thus, it is meant to protect the voter both in the court
when a person is styled as a witness and outside the court when he may be
questioned about how he voted. It was found that no provision existed as could
expose the voter to any penalty if he voluntarily chooses to disclose how he
voted or for whom he voted.
With a very clear view that 'Secrecy of ballot'
as provided in Section 94 was mooted "to ensure free and fair
elections", the Court opined thus: - "If secrecy of ballot instead of
ensuring free and fair elections is used, as is done in this case, to defeat
the very public purpose for which it is enacted, to suppress a wrong coming to
light and to protect a fraud on the election process or even to defend a crime
viz. forgery of ballot papers, this principle of secrecy of ballot will have to
yield to the larger principle of free and fair elections.." (emphasis
supplied) The Court, after noticing that the RP Act, 1951 is a self- contained
Code on the subject of elections and reiterating that "there is one
fundamental principle which permeates through all democratically elected
parliamentary institutions viz. to set them up by free and fair election",
observed:
"The principle of secrecy of ballot cannot
stand aloof or in isolation and in confrontation to the foundation of free and
fair elections viz. purity of election.
They can co-exist but as stated earlier, where
one is used to destroy the other, the first one must yield to principle of
purity of election in larger public interest.
In fact secrecy of ballot, a privilege of the
voter, is not inviolable and may be waived by him as a responsible citizen of
this country to ensure free and fair election and to unravel foul play."
(emphasis supplied) In formulating its views, support was found in certain
observations of Kelly, C.B., in Queen v. Beardsall, [LR (1875- 76) 1 QB 452],
to the following effect: - "The legislature has no doubt provided that
secrecy shall be preserved with respect to ballot papers and all documents
connected with what is now made a secret mode of election. But this secrecy is
subject to a condition essential to the due administration of justice and the
prevention of fraud, forgery, and other illegal acts affecting the purity and
legality of elections".
(emphasis supplied) Rejecting the apprehension
that the principle of secrecy enshrined in Section 94 of the RP Act, 1951,
cannot be waived because it was enacted in public interest and it being a
prohibition based on public policy, and while agreeing with the contention that
where a prohibition enacted is founded on public policy courts should be slow
to apply the doctrine of waiver, it was held that the privilege of secrecy was
granted for the benefit of an individual, even if conferred to advance a
principle enacted in public interest, it could be waived because the very
concept of privilege inheres a right to waive it. The Court thus found it an
"inescapable conclusion" that the principle of secrecy in Section 94
enacts a qualified privilege in favour of a voter not to be compelled to
disclose but if he chooses to volunteer the information the rule is not violated.
Thus, even under the elections that continue to
be based on principle of secrecy of voting, it is for the voter to choose
whether he wishes to disclose for whom he had voted or would like to keep the
secrecy intact. If he so chooses, he can give up his privilege and in that
event, the secrecy of ballot should yield. Such an event can also happen if
there is fraud, forgery or other illegal act and the disclosure sub-serves the
purpose of administration of justice.
The contention of the learned Counsel for the petitioners
is that what is significant is that when a voter is casting his vote he should
be able to do so according to his own conscience, without any fear, pressure,
or coercion. The fear that under any law, he maybe compelled to disclose for
whom he had voted can also not interdict his choice. Assurance of such freedom
is an essence of secrecy of ballot and constitutes an adjunct of free and fair
election. Liberty of the voter to choose
to disclose his ballot because of fraud or forgery is only for achieving the
very same purpose of free and fair election.
This liberty, however, does not affect,
according to the petitioners, in any way the general principle that secrecy of
ballot forms a basis of free and fair election, which is necessary for survival
of democracy.
Mr. Sachar also pressed in aid the decision in
Charles W. Burson v. Mary Rebecca Freeman: [(1992) 119 Led. 2d 5 = 504 US 119], wherein it was
held that: - "Right to vote freely for the candidate of one's choice is of
the essence of a democratic society." "No right is more precious in a
free country than that of having a choice in the election of those who make the
laws under which, as good citizens, they must live. Other rights, even the most
basic, are illusory if the right to vote is undermined".
In the above-mentioned case, after dealing with
the evil associated with 'viva voce system' and the failure of law to secure
secrecy which had opened the door to bribery it was summed up as follows:
"In sum, an examination of the history of
election regulation in this country reveals a persistent battle against two
evils; voter intimidation and election fraud. After an unsuccessful experiment
with an unofficial ballot system, all 50 States, together with numerous other
Western democracies, settled on the same solution: a secret ballot secured in
part by a restricted zone around the voting compartments." "Finally,
the dissent argues that we confuse history with necessity. Yet the dissent
concedes that a secret ballot was necessary to cure electoral abuses.
Contrary to the dissent's contention, the link
between ballot secrecy and some restricted zone surrounding the voting area is
not merely timing it is common sense. The only way to preserve the secrecy of
the ballot is to limit access to the area around the voter. Accordingly, we
hold that some restricted zone around the voting area is necessary to secure
the State's compelling interest." Mr. PP Rao, learned senior advocate, in
submitting that voting being a form of expression and a secret ballot ensures
freedom of vote, relied upon observations in Paragraph 2 of the judgment in
Lily Thomas v. Speaker, Lok Sabha & Ors. [(1993) 4 SCC 234], wherein the
Court was taking note of the process under Article 124 (4) for removal of a
Judge of the Supreme Court. It may be mentioned here that the proceedings in
the nature envisaged under Article 124 (4) were held earlier in Sub-Committee
on Judicial Accountability v. Union of India [(1991) 4 SCC 699], not to be
proceedings in the Houses of Parliament and rather one that would partake of
judicial character because it is removal after inquiry and investigation.
Mr. Rao quoted the following passage from
Paragraph 2 of the Judgment in aforementioned case: - "The statutory
process appears to start when the Speaker exercises duty under the Judges
Enquiry Act and comes to an end once the Committee appointed by the Speaker
submits the report. The debate on the Motion thereafter in the Parliament, the
discussion and the voting appear more to be political in nature.
Voting is formal expression of will or opinion
by the person entitled to exercise the right on the subject or issue in
question. In Black's Law Dictionary it is explained as, "the expression of
one's will, preference, or choice, formally manifested by a member of a
legislative or deliberative body, or of a constituency or a body of qualified
electors, in regard to the decision to be made by the body as a whole upon any
proposed measure or proceeding or in passing laws, rules or regulations, or the
selection of an officer or representative". Right to vote means right to
exercise the right in favour of or against the motion or resolution. Such a
right implies right to remain neutral as well. " (emphasis supplied) Mr.
Sachar, while submitting that the sanctity and purity of election where voter
casts his choice without any fear and favour can be ensured only if it is by
secret ballot, argued that it is secret ballot, which is the bedrock of free
and fair election.
There cannot be any distinction between a vote
cast in the election for House of the People and a vote cast in the Council of
States. He submitted that there couldn't also be a distinction between direct
elections like that for the popular House, at the Centre or in the State and an
indirect election like that for the office of the President of India or, closer
to the subject, election to fill the seats of "the representatives of the
States" in the Council of States.
In above context, he would cite the following
passage from S.R. Chaudhuri v. State of Punjab & Ors. [(2001) 7 SCC 126]:-
-
"The very concept
of responsible government and representative democracy signifies government by
the people. In constitutional terms, it denotes that the sovereign power which
resides in the people is exercised on their behalf by their chosen
representatives and for exercise of those powers, the representatives are
necessarily accountable to the people for what they do. The members of the
Legislature, thus, must owe their power directly or indirectly to the people.
The members of the State Assemblies like the Lok Sabha trace their power
directly as elected by the people while the members of the Council of State
like the Rajya Sabha owe it to the people indirectly since they are chosen by
the representatives of the people. The Council of Ministers of which the Chief
Minister is the head in the State and on whose aid and advice the Governor has
to act, must, therefore, owe their power to the people, directly or
indirectly." It is the submission of Mr. Sachar that the reason used to
justify the amendment is fallacious since it assumes as if secrecy of voting is
only a routine matter of procedure and that it would also mean that Parliament
could in future provide that election to the House of the People would be by
open ballot because there is no such provision for secrecy mentioned in the
Constitution. His submission is that secrecy of ballot is an integral part of a
democratic set up and its absence means absence of free and fair election.
In A. Neelalohithadasan Nadar v. George Mascrene
& Ors. [1994 Supp (2) SCC 619], the conflict was found to be between two
principles of election law - one being "purity of elections" and the
other "secrecy of ballot". On the basis of the former, the Kerala
High Court had upset the election of the appellant who later came before this
Court. Challenge to the order of the High Court was on the anvil of the latter
principle.
The factual matrix of the case would show that
the appellant and the first respondent were contesting candidates for the
Kovalam Assembly Seat in the State of Kerala. In the counting, the appellant was declared
elected on ground that he had obtained 21 votes in excess of the first
respondent. The respondent moved the election petition mainly on ground of
impersonation and double voting by 19 specified voters. The High Court on
examining the evidence led by the parties on the issue found that certain
ballot papers deserved being picked out from the respective ballot boxes to be
rejected as void. The ministerial work for the purpose was assigned to the
Joint Registrar of the High Court. On such exercise being undertaken, the
election petitioner entitled himself to be declared elected instead of the
appellant.
The High Court had located the void votes on the
assumption that both the contestants had bowed to the principle embodied in
Section 64(4) of the RP Act for the sake of "purity of elections"
principle and were willing partners to have the void element identified and
extricated from the voted lot. In this view, rejecting the argument in appeal
on breach of the principle of "secrecy of ballot", this Court quoted
from the law in S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra (supra) and
observed in Paragraph 10 as under: -
"The existence of the principle of
"secrecy of ballot" cannot be denied. It undoubtedly is an
indispensable adjunct of free and fair elections. The Act statutorily assures a
voter that he would not be compelled by any authority to disclose as to for
whom he has voted, so that he may vote without fear or favour and free from any
apprehension of its disclosure against his will from his own lips. See in this
connection Raghbir Singh Gill v. Gurcharan Singh Tohra. But this right of the
voter is not absolute. It must yield to the principle of "purity of
election" in larger public interest. The exercise of extrication of void
votes under Section 62(4) of the Act would not in any manner impinge on the
secrecy of ballot especially when void votes are those which have to be treated
as no votes at all. "Secrecy of ballot" principle presupposes a
validly cast vote, the sanctity and sacrosanctity of which must in all events
be preserved. When it is talked of ensuring free and fair elections it is meant
elections held on the fundamental foundation of purity and the "secrecy of
ballot" as an allied vital principle".
(emphasis supplied) It was thus reiterated by
this Court in A. Neelalohithadasan Nadar v. George Mascrene (supra) that out of
the two competing principles, the purity of election principle must have its
way and that the rule of secrecy cannot be pressed into service "to
suppress a wrong coming to light and to protect a fraud on the election
process." The submission on the part of the Petitioner that a right to
vote invariably carries as an implied term, the right to vote in secrecy, is
not wholly correct. Where the Constitution thought it fit to do so, it has
itself provided for elections by secret ballot, e.g., in case of election of
the President of India and the Vice-President of India. It is apt to point out
that unlike silence on the subject in the case of provisions of the
Constitution concerning election to fill the seats of the representatives of
States in the Council of States, Articles 55(3) and 66(1), that relate to the
manner of election for the offices of the President and the Vice President
respectively, provide for election by "secret ballot".
Articles 55(3) and 66(1) of the Constitution
provide for elections of the President and the Vice President respectively,
referring to voting by electoral colleges, consisting of elected members of
Parliament and Legislative Assembly of each State for purposes of the former
office and members of both Houses of Parliament for the latter office. In both
cases, it was felt necessary by the framers of the Constitution to provide that
the voting at such elections shall be by secret ballot through inclusion of the
words "and the voting at such election shall be by secret ballot." If
the right to vote by itself implies or postulates voting in secrecy, then Articles
55(3) and 66(1) would not have required inclusion of such words. The necessity
for including the said condition in the said Articles shows that "secret
ballot" is not always implied. It is not incorporated in the concept of
voting by necessary implication.
It follows that for 'secret ballot' to be the
norm, it must be expressly so provided. To read into Article 80(4) the
requirement of a secret ballot would be to read the words "and the voting
at such election shall be by secret ballot" into the provision. To do so
would be against every principle of Constitutional and statutory construction.
In view of it not being the requirement of the
Constitution, as in the case of the President and the Vice President, it was
permissible for Parliament when passing legislation like the Representation of
the People Act to provide otherwise, that is to choose between the system of
secret ballot or open ballot. Thus, from this angle, it is difficult to hold
that there is Constitutional infirmity in providing open ballot system for the
Council of States.
Other arguments & Conclusion It has been
argued by the petitioners that the Election Commission of India, which under
the Constitution has been given the plenary powers to supervise the elections
freely and fairly, had opposed the impugned amendment of changing the secret
ballot system. Its view has, therefore, to be given proper weightage.
In this context, we would say that where the law
on the subject is silent, Article 324 is a reservoir of power for the Election
Commission to act for the avowed purpose of pursuing the goal of a free and
fair election, and in this view it also assumes the role of an adviser. But the
power to make law under Article 327 vests in the Parliament, which is supreme
and so, not bound by such advice. We would reject the argument by referring to
what this Court has already said in Mohinder Singh Gill (supra) and what bears
reiteration here is that the limitations on the exercise of "plenary
character" of the Election Commission include one to the effect that
"when Parliament or any State Legislature has made valid law relating to
or in connection with elections, the Commission, shall act in conformity with,
not in violation of, such provisions".
The submission of learned Counsel for the Writ
Petitioners is that the amendment violates the Constitution, which recognize
the right to vote as a constitutional right, a facet of Article 19(1)(a) and
the secret ballot preserving this right. Further that secret ballot is an
adjunct of free and fair election and therefore, a part of a Parliamentary
democracy and, therefore, taking away of voting right by secret ballot affects
the basic feature of the Constitution. They argue that the impugned amendment
was not called for.
The amendment, according to the Counsel for the
petitioners, seems to proceed on the basis that it is only the leadership of
the political parties that is to be trusted rather than the average legislator,
which view is not very complimentary to the respect and dignity of the
legislators, besides being factually unacceptable.
In above context, the Counsel referred to the
following words of Dr. B.R. Ambedkar on the issue as to how the dignity of an
individual should be upheld in the political system: - "The second thing
we must do is to observe the caution which John Stuart Mill has given to all
who are interested in the maintenance of democracy, namely, not "to lay
their liberties at the feet of even a great man, or to trust him with powers
which enable him to subvert their institutions". There is nothing wrong in
being grateful to great men who have rendered life-long services to the
country.
But there are limits to gratefulness. As has
been well said by the Irish patriot Daniel O'Connel, no man can be grateful at
the cost of his honour, no women can be grateful at the cost of her chastity
and no nation can be grateful at the cost of its liberty. This caution is far
more necessary in the case of India than in the case of any other country. For in India, Bhakti or what may be
called the path of devotion or hero-worship, plays a part in its politics of
any other country in the world.
Bhakti in religion may be a road to the
salvation of the soul. But, in politics, Bhakti or hero-worship is a sure road
to degradation and to eventual dictatorship." On the other hand, the
respondents supporting the impugned amendment would argue that the Secrecy of
voting had led to corruption and cross voting. They would point out that voting
on all issues in the legislatures, including the Council of States and the Legislative
Assemblies, is invariably open and not by secret ballot. The election of a
representative is now at par with other important matters. They would concede
that the common man participating in direct election as voter exercising his
vote in a polling booth requires the safeguard of secrecy. But elected members
of legislative assemblies, as per the learned Counsel, are expected to have
stronger moral fiber and public courage.
The learned Attorney General pointed out that
the Statement of Objects and Reasons of the impugned Act refers to the Report
of the Ethics Committee of Parliament. The Ethics Committee in its First Report
of 08th
December 1998 had recommended that the issue relating to open ballot system for
election to the Rajya Sabha be examined. The issue again arose in the wake of
allegations of money power made in respect of biennial elections to the Council
of States held in 2000.
The relevant observations of the Ethics
Committee have already been extracted, in extenso, in earlier part of this judgment.
Suffice it to note here again that the committee took cognizance of "the
emerging trend of cross voting in the elections for Rajya Sabha" and
allegations that "large sums of money and other considerations encourage
the electorate" for such purpose "to vote in a particular manner
leading sometimes to the defeat of the official candidates belonging to their
own political party". The Committee commended "holding the elections
to Rajya Sabha and the Legislative Councils in States by open ballot" so
as to remove the mischief played by "big money and other
considerations" with the electoral process.
It is the submission of the learned Counsel for
the petitioners that the observations of the Ethics Committee on which the
impugned amendment was brought about not only fail to justify the amendment but
run counter to the Constitutional scheme of conducting free and fair election
which is necessary for preserving the democracy. On the other hand, the
Attorney General submitted that since the bulk of the candidates are elected
under the party system, the principle that a person elected or given the
nomination of a party should not be lured into voting against the party by
money power is wholesome and a salutary one.
Mr. Sachar has pointed out that the Conduct of
Election Rules, 1961 were framed and notified in exercise of powers delegated
by the RP Act, 1951. In the wake of the impugned amendment of Sections 59, 94
and 128 of RP Act, 1951, the said Rules have also been amended by the Central
Government through S.O. 272 (E) dated 27.02.2004. This amendment has resulted
in Rule 39-AA being added to the Rules for conduct of poll in election to the
Council of States provided in Part VI. Earlier, Rule 39-A had been added to
the said Rules in furtherance of the system of secret ballot.
Rule 39-A may be first taken note of. It reads
as under: -
39.A
"Maintenance of secrecy of voting by electors within polling station and voting
procedure.
-
Every elector, to whom a
ballot paper has been issued under rule 38-A or under any other provision of
these rules, shall maintain secrecy of voting within the polling station and
for that purpose observe the voting procedure hereinafter laid down.
-
The elector on receiving
the ballot paper shall forthwith
-
proceed to one of the
voting compartments;
-
record his vote in
accordance with sub-rule (2) of rule 37-A, with the article supplied for the
purpose;
-
fold the ballot paper so
as to conceal his vote;
-
if required, show to the
Presiding Officer, the distinguished mark on the ballot paper;
-
insert the folded paper
into the ballot box, and
-
quit
the polling station.
-
every elector shall vote
without undue delay.
-
No elector shall be
allowed to enter a voting compartment when another elector is inside it.
-
If an elector to whom a
ballot paper has been issued, refuses, after warning given by the Presiding
Officer to observe the procedure as laid down in sub-rule (2), the ballot paper
issued to him shall, whether he has recorded his vote thereon or not, be taken
back from him by the Presiding Officer or a polling officer under the direction
of the Presiding Officer.
-
After the ballot paper
has been taken back, the Presiding Officer shall record on its back the words
"Cancelled : voting procedure violated" and put his signature
below those words.
-
All the ballot papers on
which the words "Cancelled : voting procedure violated" are recorded,
shall be kept in a separate cover which shall bear on its face the words
"Ballot papers :voting procedure violated".
-
Without prejudice to any
other penalty to which an elector, from whom a ballot paper has been taken back
under sub-rule (5), may be liable, vote, if any, recorded on such ballot paper
shall not be counted."
Rule 39-AA applied to such elections by virtue
of Rule 70 reads as under: - "Information regarding casting of votes. –
-
Notwithstanding anything
contained in Rule 39-A, the presiding officer shall, between the period when an
elector being a member of a political party records his vote on a ballot paper
and before such elector inserts that ballot paper into the ballot box, allow
the authorized agent of that political party to verify as to whom such elector
has cast his vote:
Provided that if such elector refuses to show
his marked ballot paper to the authorized agent of his political party, the
ballot paper issued to him shall be taken back by the presiding officer or a
polling officer under the direction of the presiding officer and the ballot
paper so taken back shall then be further dealt with in the manner specified in
sub-rules (6) to (8) of Rule 39-A as if such ballot paper had been taken back
under sub- rule (5) of that rule.
-
Every political party,
whose member as an elector casts a vote at a polling station, shall, for
purposes of sub-rule (1), appoint, in Form 22-A, two authorized agents.
-
An authorized agent
appointed under sub-rule (2) shall be present throughout the polling hours at
the polling station and the other shall relieve him when he goes out of the
polling station or vice versa." Since Rule 39-AA is required to be read
with Rule 39-A, the former is necessarily an exception to the general rule in
all other elections conducted under the RP Act, 1951 by the Election
Commission. The norm has been, prior to the impugned amendment, that the voting
shall be by a secret ballot, in which all concerned, including the electors are
expected to preserve the sanctity of the vote by keeping it secret. But as
already observed, the privilege to keep the vote secret is that of the elector
who may choose otherwise; that is to say, he may opt to disclose the manner in
which he has cast his vote but he cannot be compelled to disclose the manner in
which he has done so, except in accordance with the law on the subject which
ordinarily comes into play only in case the election is challenged by way of
election petition before the High Court. In the case of election to the Council
of States, in the post amendment scenario, the norm has undergone a change, in
that the political party to which a particular member of the Legislative
Assembly of the State belongs is entitled to ascertain through formally
appointed authorized agent deputed at the polling station the manner in which
the member in question, who is an elector for such purposes, has exercised his
franchise. The exception applies only to such members of the Legislative
Assembly, as are members of a political party and not to all members across the
board. The voter at such an election may refuse to show his vote to the
authorized agent of his political party, but in such an event he forfeits his right
to vote, which is cancelled by the Presiding Officer of the poling station on
account of violation of the election procedure.
The effect of the amended Rules, thus, is that
in elections to the Council of States, before the elector inserts the ballot paper
into the ballot box, the authorized agent of the political party shall be
allowed to verify as to whom such an elector casts his vote. In case such an
elector refuses to show his marked ballot paper, the same shall be taken back
and will be cancelled by the Presiding Officer on the ground that the voting
procedure had been violated. There is, therefore, a compulsion on the voter to
show his vote.
But then, the above rules are only in
furtherance of the object sought to be achieved by the impugned amendment.
Rather, the rules show, the open ballot system
put in position does not mean open to one and all. It is only the authorized
agent of the political party who is allowed to see and verify as to whom such
an elector casts his vote. The prerogative remains with the voter to choose as
to whether or not to show his vote to the authorized agent of his party.
Voting at elections to the Council of States
cannot be compared with a general election. 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 victimization. There is no party
affiliation and hence the choice is entirely with the voter. This is not the
case when elections are held to the Council of States as the electors are
elected members of the legislative assemblies who in turn have party
affiliations.
The electoral systems world over contemplate
variations.
No one yardstick can be applied to an electoral
system. The question whether election is direct or indirect and for which house
members are to be chosen is a relevant aspect. All over the world in
democracies, members of the House of Representatives are chosen directly by
popular vote. Secrecy there is a must and insisted upon; in representative
democracy, particularly to upper chamber, indirect means of election adopted on
party lines is well accepted practice.
In "Australian Constitutional Law"
[2nd Edition) by Fajgenbaum and Hanks, it is stated at page 51, that:
"Section 24 of the Australian Constitution
embodies three principles, i.e., representative democracy, direct popular
election and character of the House of representative democracy predicates
enfranchisement of the electors, the existence of an electoral system capable
of giving effect to the selection of their representatives and bestowal of
legislative functions upon representatives selected.
The extent of franchise comes under the heading
"enfranchisement of electors".
The electoral system with innumerable details
including voting methods and qualifications of representatives as well as
proportional representation in different forms etc. are maters in which there
cannot exist a set formula said to be consistent with the representative
democracy. The wide range of legislative functions which a legislature may
possess must be given due weightage in such matters. Representative democracy
covers an entire spectrum of political institutions, each differing in
countless respects. However, at no point of time within such spectrum does
there exist a single requirement so essential so as to be determinative of the
existence of Representative Democracy. Section 24 of the Australian
Constitution provides for direct choice of members by the people.
The existence of variations in the number of
persons or voters in the electoral division within a State does not detract
from the description of the House of Representatives or the Senate or the
existing electoral system. Proportionality is an element of "choosing of
members" whereas qualification is different from the concept of 'choosing
of members'.
Section 30 of the Australian Constitution refers
to qualifications of electors.
Section 24 of the Australian Constitution deals
with choosing of members in which there is an element of proportionality.
Proportional representation is the system of
voting." (emphasis supplied) Sections 8, 24, 30 and 128 of the Australian
Constitution are as under:
-
"The
qualification of electors of senators shall be in each State that which is
prescribed by the Constitution, or by the Parliament, as the qualification for
electors of members of the House of Representatives but in the choosing of
senators each elector shall vote only once.
-
The
House of Representatives shall be composed of members directly chosen by the
people of the Commonwealth, and the number of such members shall be, as nearly
as practicable, twice the number of the senators.
The number of members chosen in the several
States shall be in proportion to the respective numbers of their people, and
shall, until the Parliament otherwise provides, be determined, whenever
necessary, in the following manner:-
-
A
quota shall be ascertained by dividing the number of the people of the
Commonwealth, as shown by the latest statistics of the Commonwealth, by twice
the number of the senators;
-
The
number of members to be chosen in each State shall be determined by dividing
the number of the people of the State, as shown by the latest statistics of the
Commonwealth, by the quota; and if on such division there is a remainder greater
than one-half of the quota, once more member shall be chosen in the State.
But notwithstanding anything in this section,
five members at least shall be chosen in each Original State.
-
Until
the Parliament otherwise provides, the qualifications of electors of members of
the House of Representatives shall be in each State that which is prescribed by
the law of the State as the qualification of electors of the more numerous
House of Parliament of the State; but in the choosing of members each elector
shall vote only once.
-
This
Constitution shall not be altered except in the following manner:
The proposed law for the alteration thereof must
be passed by an absolute majority of each House of the Parliament, and n not
less than two, nor more than six months after its passage through both Houses
the proposed law shall be submitted in each State and Territory to the electors
qualified to vote for the election of members of the House of Representatives.
But if either House passes any such proposed law
by an absolute majority, and the other House rejects or fails to pass it or
passes it with any amendments to which the first-mentioned House will not
agree, and if after an interval of three months the first-mentioned House in
the same or the next session again passes the proposed law by an absolute
majority with or without any amendment which has been made or agreed to by the
other House, and such other House rejects or fails to pass it or passes it with
any amendment to which the first-mentioned House will not agree, the Governor
General may submit the proposed law as last proposed by the first-mentioned
House, and either with or without any amendments subsequently agreed to by both
Houses, to the electors in each State and Territory qualified to vote for the
election of the House of Representatives.
When a proposed law is submitted to the electors
the vote shall be taken in such manner as the Parliament prescribes. But until
the qualification of electors of members of the House of Representatives
becomes uniform throughout the Commonwealth, only one- half the electors voting
for and against the proposed law shall be counted in any State in which adult
suffrage prevails.
And if in a majority of the States a majority of
the electors voting approve the proposed law, and if a majority of all the
electors voting also approve the proposed law, it shall be presented to the
Governor-General for the Queen's Assent.
No alternation diminishing the proportionate
representation of any State in either House of the Parliament, or the minimum
number of representatives of a State in the House of Representative, in
increasing, diminishing, or otherwise altering the limits of the State, or in
any manner affecting the provisions of the Constitution in relation thereto,
shall become law unless the majority of the electors voting in that State
approve the proposed law.
In this section, "Territory" means any
territory referred to in section one hundred and twenty-two of this
Constitution in respect of which there is in force a law allowing its
representation in the House of Representatives." Section 24 is quite
similar to Article 80(4) and Section 30 to Article 84 of our Constitution.
In the case of Judd v. Mckeon reported in (1926)
38 CLR 380 at page 385, it is stated as follows:
"The extent of franchise in a democracy is
a matter of fundamental importance. The purpose behind section 24 of the
Australian Constitution is to ensure that the members of the Senate are chosen
directly by popular vote and not by indirect means, such as, by the parliament
or the legislative assembly or by the executive or by an electoral college.
Section 24 of the Australian Constitution says that the members of the Senate
shall be chosen by the people, which means, by people qualified to vote."
(emphasis supplied) In the case of King v. James reported in (1972) 128 CLR 221
at page 229, it has been held as follows:
"The fact that the world 'people' is used
in section 24 of the Australian Constitution in contra-distinction to the word
"elector" in Sections 8, 30 and 128 shows that the framers of the
Constitution drafted Section 24 with the idea of providing in that section the
manner of choosing rather than emphasizing the people who were to choose."
(emphasis supplied) In indirect election, when law provides for open ballot
system; to decide whether it amounts to a denial to vote or it ensures party
discipline, useful reference can be made to the judgment of Supreme Court of
South Africa in the case of New National Party of South Africa v. Government of
the Republic of South Africa & Anr. reported in 1999 (3) SA 191, head note
whereof reads as under:
"Held (per Yacoob J; Chaskalson P. Langa
DP, Ackermann J, Goldstone J, Madala J. Mokgoro J and Sachs J Concurring) that
the right to vote was indispensable to, and empty without, the right to free
and fair elections; the latter gave content and meaning to the former. The
right to free and fair elections underlined the importance of the exercise of
the right to vote and the requirement that every election should be fair had
implications for the way in which the right to vote could be given more
substantive content and legitimately exercised. Two of these implications were
material for the present case: each citizen entitled to do so must note vote
more than once in any election and any person not entitled to vote must not be
permitted to do so. The extent to which these deviations occurred would have an
impact on the fairness of the election. This meant that the regulation of the
exercise of the right to vote was necessary so that these deviations could be
eliminated or restricted in order to ensure proper implementation of the right
to vote. (Paragraph (12) at 201A/B-D) Held, further (per Yacoob J; Chaskalson
P, Langa DP, Ackermann J, Goldstone J, Madala J, Mokgoro J and Sachs J
concurring; O'Regan J dissenting), that the right to vote contemplated by
section 19(3) of the Constitution was therefore a right to vote in free and
fair elections in terms of an electoral system prescribed by national
legislation which complied with the requirements laid down by the Constitution.
The details of the system were left to Parliament. The national legislation
which prescribed the electoral system was the Electoral Act. (Paragraph (14) at
202C/D-D/E)" (emphasis supplied) It shows that the right to vote in 'free
and fair elections' is always in terms of an electoral system prescribed by
national legislation. The right to vote derives its colour from the right to
'free and fair elections'; that the right to vote is empty without the right to
'free and fair elections'. It is the concept of 'free and fair elections' in
terms of an electoral system which provides content and meaning to the 'right
to vote'. In other words, 'right to vote' is not an ingredient of the free and
fair elections. It is essential but not the necessary ingredient.
In the aforesaid case, the dispute was whether
the Electoral Act could prescribe only one specific means as proof of enrolment
on the voters roll for voting. Under Electoral Act, I.D. card was prescribed as
the only proof of enrolment on the voters roll. This was challenged. Rejecting
the objection, the Constitutional Court through Yacoob, J, on behalf of the majority
held:
-
The aspect of the
Electoral Act in issue regulate the way in which citizens must register and
vote. The question which must be answered is whether these requirements
constitute an infringement of the right to vote. This can only properly be done
in the context of an analysis of the nature, ambit and importance of the right
in question, the effect and importance of other related constitutional rights,
the inter- relationship of all these rights, the importance of the need for an
effective exercise of the right to vote and the degree of regulation required
to facilitate the effective exercise of the right.
-
The Constitution
effectively confers the right to vote for legislative bodies at all levels of
government only on those South African citizens who are 18 years or older. It
must be emphasized at this stage that the right to vote is not available to
everyone in South
Africa
irrespective of age or citizenship. The importance of the right to vote is
self- evident and can never be overstated.
There is however no point in belabouring its
importance and it is sufficient to say that the right is fundamental to a
democracy for without it there can be no democracy. But the mere existence of
the right to vote without proper arrangements for its effective exercise does
nothing for a democracy; it is both empty and useless.
-
The Constitution takes
an important step in the recognition of the importance of the right to exercise
the vote by providing that all South African citizens have the right to free,
fair and regular elections. It is to be noted that all South African citizens
irrespective of their age have a right to these elections. The right to vote is
of course indispensable to, and empty without, the right to free and fair
elections; the latter gives content and meaning to the former. The right to
free and fair elections underlines the importance of the exercise of the right
to vote and the requirement that every election should be fair has implications
for the way in which the right to vote can be given more substantive content
and legitimately exercised. Two of these implications are material for this
case:
each citizen entitled to do so must note vote
more than once in any election; any person not entitled to vote must not be
permitted to do so. The extent to which these deviations occur will have an
impact on the fairness of the election.
This means that the regulation of the exercise
of the right to vote is necessary so that these deviations can be eliminated or
restricted in order to ensure the proper implementation of the right to vote.
-
The Constitution
recognizes that it is necessary to regulate the exercise of the right to vote
so as to give substantive content to the right. Section 1(d) contemplates the
existence of a national common voters roll. Sections 46(1), 105(1), and 157(5)
of the Constitution all make significant provisions relevant to the regulation
of the exercise of the right to vote. Their effect is the following:
-
National, provincial and
municipal elections must be held in terms of an electoral system which must be
prescribed by national legislation.
-
The electoral system must,
in general, result in proportional representation.
-
Elections for the
national assembly must be based on the national common voters roll.
-
Elections for provincial
legislatures and municipal councils must be based on the province's segment and
the municipality's segment of the national common voters roll respectively.
The existence of, and the proper functioning of
a voters roll, is therefore a constitutional requirement integral both to the
elections mandated by the Constitution and to the right to vote in any of them.
-
The requirement that
only those persons whose names appear on the national voters roll may vote,
renders the requirement that South African citizens must register before they
can exercise their vote, a constitutional imperative. It is a constitutional
requirement of the right to vote, and not a limitation of the right.
-
The process of
registration and voting needs to be managed and regulated in order to ensure
that the elections are free and fair. The creation of a Commission to manage the
elections is a further essential though, not sufficient ingredient in this
process. In order to understand the enormity of the problem, one has just to
picture the specter of millions of South Africans arriving at registration
points or voting stations armed with all manner of evidence and that they are
entitled to register or to vote, only to have the registration or electoral
officer sift through this evidence in order to determine whether or not each of
such persons is entitled to register or to vote.
It is to avoid this difficulty that the
Electoral Act makes detailed provisions concerning registration, voting and
related matters including the way in which voters are to identify themselves in
order to register on the common voters roll and to vote.
-
The detailed provisions
of the Electoral Act serve the important purpose of ensuring that those who
qualify for the vote can register as voters, that the names of these persons
are placed on a national common voters roll, and that each such person exercises
the right to vote only once. Some form of easy and reliable identification is
necessary to facilitate this process. It is in this context that the statutory
provision for the production of certain identity documents must be located. The
absence of such a provision could render the exercise of the right to vote
nugatory and have grave implications for the fairness of the elections. The
legislature is therefore obliged to make such a provision.
The nature of the enquiry
-
The appellant did not
dispute that proof of identity and citizenship for registration, and proof of
enrolment on the voters roll for voting, are necessary components of the
electoral system contemplated by the Constitution. What was disputed was
whether the Electoral Act could prescribe that the only means for such proof
was a bar-coded ID or TRC for registering and a bar-coded ID or TIC for voting.
The submissions on behalf of the appellant were advanced at two levels. In the
first place, it was contended that the relevant provisions on their face and
evaluated in relation to the constitutional right to vote infringe this right.
The question of the facial inconsistency of the impugned provisions with the
right to vote and the right to free and fair elections as encapsulated in the
Constitution must be addressed both in relation to the rationality of the
provision and to whether it infringes the right.
Although it was specifically mentioned in
response to questions by a member of the Court that the appellant relied on
facial inconsistency, no substantial argument was advanced in support of such a
contention. Secondly, the argument was that the consequences of the documentary
requirements constituted a denial of the right to vote to millions of South
African citizens who were not in possession of the bar-coded ID. Many of these
persons (millions of people), so it was argued, would not be able to vote for a
variety of inter-related reasons. The submissions were that the Department of
Home Affairs (the department), charged with the responsibility of issuing these
documents, did not have the capacity to produce them timeously, that the cost
of acquiring the documents constituted a real impediment and that potential
voters were not aware, or had not been made sufficiently aware, of the
documentary requirements to enable them to apply for the documents in time. It
was contended in this context that South African citizens who were in
possession of identity documents issued pursuant to legislation which was
operative before the 1986 Act came into force ought to have been allowed to use
them.
-
It is to be emphasized
that it is for Parliament to determine the means by which voters must identify
themselves.
This is not the function of a court. But this
does not mean that Parliament is at large in determining the way in which the
electoral scheme is to be structured.
There are important safeguards aimed at ensuring
appropriate protection for citizens who desire to exercise this foundational
right. The first of the constitutional constraints placed upon Parliament is
that there must be a rational relationship between the scheme which it adopts
and the achievement of a legitimate governmental purpose.
Parliament cannot act capriciously or
arbitrarily. The absence of such a rational connection will result in the
measure being unconstitutional. An objector who challenges the electoral scheme
on these grounds bears the onus of establishing the absence of a legitimate
government purpose, or the absence of a rational relationship between the
measure and that purpose.
-
A second constraint is
that the electoral scheme must not infringe any of the fundamental rights
enshrined in chapter 2 of the Constitution. The onus is once again on the party
who alleges an infringement of the right to establish it.
The contention in this appeal is that the
impugned provisions of the Electoral Act constitute a denial of the right to
vote to a substantial number of South African citizens. Any scheme designed to
facilitate the exercise of this right carries with it the possibility that some
people will not comply with its provisions. But that does not make the scheme
unconstitutional. The decisive question which arises for consideration in this
case is the following: when can it legitimately be said that a legislative
measure designed to enable people to vote in fact results in a denial of that
right? What a party alleging that an Act of Parliament has infringed the right
to vote is required to establish in order to succeed will emerge in the process
of answering this question.
-
The exercise to be
carried out by a court entails an evaluation of the consequences of a statutory
provision in the process of its implementation which occurs at some time in the
future. It is necessary, at the outset of the enquiry, to determine the nature
of the consequence that is impermissible. The consequence that will be
impermissible in the present case can best be determined by focusing on the
question as to what Parliament must achieve. Parliament must ensure that people
who would otherwise be eligible to vote are able to do so if they want to vote
and if they take reasonable steps in pursuit of the right to vote. More cannot
be expected of Parliament. It follows that an impermissible consequence will
ensue if those who wish to vote and who take reasonable steps in pursuit of the
right, are unable to do so.
-
It is necessary to
determine the circumstances that are to be taken into account in deciding
whether the impugned provisions infringe the right to vote. There are two
possibilities. A court can make an evaluation in the light of the circumstances
pertaining at the time the provisions were enacted, or those which exist at
some later date when the constitutionality of the provisions are challenged.
This Court has adopted an objective approach to the issue of the
constitutionality of statutory provisions.
A pre-existing law becomes invalid to the extent
of its inconsistency with the Constitution, the moment the Constitution comes
into force. It is irrelevant that this Court may declare it to be inconsistent
only several years later. Similarly, a statutory provision which is passed
after the constitution comes into operation is invalid to the extent of its
inconsistency with the Constitution, the moment the provision is enacted. This
is so regardless of the fact that its invalidity is only attacked, or the
concrete circumstances that form the basis of the attack only become apparent,
long after its enactment. Consistent with this objective approach to statutory
invalidity, the circumstances which become apparent at the time when the
validity of the provision is considered by a court are not necessarily
irrelevant to the question of its consequential invalidity.
However, a statute cannot have limping validity,
valid one day, invalid the next, depending upon changing circumstances.
Its validity must ordinarily be determined as at
the date it was passed.
Nevertheless, the implementation of an Act which
passes constitutional scrutiny at the time of its enactment, may well give rise
to a constitutional complaint, if, as a result of circumstances which become
apparent later, its implementation would infringe a constitutional right. In
assessing the validity of such a complaint, it becomes necessary to determine
whether the proximate cause of the infringement of the right is the statutory
provision itself, or whether the infringement of the right has been
precipitated by some other cause, such as the failure of a governmental agency
to fulfill its responsibilities. If it is established that the proximate cause
of the infringement, in the light of the circumstances, lies in the statutory
provision under consideration, that provision infringes the right. This is not
a departure from the objective approach to unconstitutionality.
It is merely a recognition of the fact that a
constitutional defect in a statutory provision is not always readily apparent
at the time of its enactment, but may only emerge later when a concrete case
presents itself for adjudication.
-
It is necessary to apply
an objective test in deciding whether the Act of Parliament, which makes
provision for the electoral scheme challenged in the present case, is valid.
Parliament is obliged to provide for the machinery, mechanism or process that
is reasonably capable of achieving the goal of ensuring that all persons who
want to vote, and who take reasonable steps in pursuit of that right, are able
to do so. I conclude, therefore, that the Act would infringe the right to vote
if it is shown that, as at the date of the adoption of the measure, its
probable consequence would be that those who want to vote would not have been
able to do so, even though they acted reasonably in pursuit of the right.
Any scheme which is not sufficiently flexible to
be reasonably capable of achieving the goal of ensuring that people who want to
vote will be able to do so if they act reasonably in pursuit of the right, has
the potential of infringing the right. That potential becomes apparent only
when a concrete case is brought before a court. The appellant bears the onus of
establishing that the machinery or process provided for is not reasonably
capable of achieving that purpose. As pointed out in the previous paragraph, it
might well happen that the right may be infringed or threatened because a
governmental agency does not perform efficiently in the implementation of the
statute. This will not mean that the statute is invalid. The remedy for this
lies elsewhere. The appellant must fail if it does not establish that the right
is infringed by the impugned provisions in the manner described earlier. This
Court held in August and Another v. The Electoral Commission and Others that
all prisoners would have been effectively disenfranchised without
constitutional or statutory authority by the system of voting and registration
which had been put into place by the Commission. This case is different,
however, because the alleged disenfranchisement is said to arise from the terms
of the statute and not from the acts or omissions of the agency charged with
implementing the statute.
-
O'Regan J in her
dissenting judgment measures the importance of the purpose of the statutory
provision in relation to its effect, and asks the question whether the
electoral scheme is reasonable. She goes on to conclude that the scheme is not
reasonable, and for that reason, to hold that the relevant provisions of the
Electoral Act are inconsistent with the Constitution. In my view this is not
the correct approach to the problem. Decisions as to the reasonableness of
statutory provisions are ordinarily matters within the exclusive competence of
Parliament. This is fundamental to the doctrine of separation of powers and to
the role of courts in a democratic society. Courts do not review provisions of
Acts of Parliament on the grounds that they are unreasonable. They will do so
only if they are satisfied that the legislation is not rationally connected to
a legitimate government purpose. In such circumstances, review is competent
because the legislation is arbitrary.
Arbitrariness is inconsistent with the rule of
law which is a core value of the Constitution. It was within the power of
Parliament to determine what scheme should be adopted for the election. If the
legislation defining the scheme is rational, the Act of Parliament cannot be
challenged on the grounds of "unreasonableness". Reasonableness will
only become relevant if it is established that the scheme, though rational, has
the effect of infringing the right of citizens to vote. The question would then
arise whether the limitation is justifiable under the provisions of section 36
of the Constitution, and it is only as part of this section 36 enquiry that
reasonableness becomes relevant. It follows that it is only at that stage of
enquiry that the question of reasonableness has to be considered. The first
question to be decided, therefore, is whether the scheme prescribed by the
Electoral Act is rational.
Rationality of the statutory provisions
-
It is, in my view,
convenient to determine whether the impugned provisions are rationally related
to a legitimate governmental purpose in two stages. The first part of the
enquiry is whether a facial analysis of the provisions in issue, in relation to
the Constitution, has been shown to lack rationality; the second is whether
these provisions can be said to be arbitrary or capricious in the light of
certain circumstances existing as at the date of the adoption of the statute.
Effect of the relevant circumstances
-
The facial analysis
demonstrates that the statutory provisions asserting the disputed documentary
requirements are rationally related to the legitimate governmental purpose of
ensuring the effective exercise of the right to vote. I will now examine
whether the disputed measures can be said to be arbitrary or capricious in the
light of the circumstances which, according to the appellant, were
relevant." It is, therefore, evident that the right to vote is a concept
which has to yield to a concept of the attainment of free and fair elections.
The nature of elections, namely, direct or indirect, regulates the concept of
right to vote. Where elections are direct, secret voting is insisted upon.
Where elections are indirect and where members are chosen by indirect means,
such as, by parliament or by legislative assembly or by executive, then open
ballot can be introduced as a concept under the electoral system of voting. In
the case of direct elections, members are chosen directly by popular vote which
is not the case under indirect elections. Therefore, it cannot be said that the
concept of open ballot would defeat the attainment of free and fair elections.
In the present case, the question of denial of right to vote would be self
inflicted only on the member of the Legislative Assembly declining to show his
vote to the authorized representative of the party. If a MLA casts a vote in
favour of any person he thinks appropriate and shows his vote to the authorized
representative of the political party to which he belongs, Rules do not
contemplate cancellation of such a vote.
It cannot be forgotten that the existence of
political parties is an essential feature of our Parliamentary democracy and
that it can be a matter of concern for Parliament if it finds that electors
were resorting to cross voting under the garb of conscience voting, flouting
party discipline in the name of secrecy of voting. This would weaken the party
discipline over the errant Legislators. Political parties are the sine qua non
of Parliamentary democracy in our country and the protection of party
discipline can be introduced as an essential feature of the purity of elections
in case of indirect elections.
Parliamentary Democracy and multi party system
are an inherent part of the basic structure of Indian Constitution. It is
political parties that set up candidates at an election who are predominantly
elected as Members of the State Legislatures. The context in which General
Elections are held, secrecy of the vote is necessary in order to maintain the
purity of the Election system. Every voter has a right to vote in a free and
fair manner and not disclose to any person how he has voted. But here we are
concerned with a voter who is elected on the ticket of a political party. In
this view, the context entirely changes.
That the concept of 'constituency-based
representation' is different from 'proportional representation' has been
eloquently brought out in the case of United Democratic Movement v. President
of the Republic of South Africa and Others reported in 2003 (1) SA 495, where
the question before the Supreme Court was: whether 'floor crossing' was
fundamental to the Constitution of South Africa. In this judgment the concept
of proportional representation vis-`-vis constituency-based representation is
highlighted. The relevant passages from the said judgment read as under:
-
"The first question
that has to be considered is the meaning of the phrase "a multi-party
system of democratic government" in the context of section 1(d) of the
Constitution. It clearly excludes a one-party state, or a system of government
in which a limited number of parties are entitled to compete for office.
But is that its only application?
-
The phrase is not a term
of Article We were referred to no authority on political science or the South
African Constitution that offers a meaning of these words. Nor can any
assistance be gleaned from commentaries on the South African Constitution. Most
authors seem to regard the meaning of the phrase to be self-evident and to
require no explanation beyond the words themselves.
-
A multi-party democracy
contemplates a political order in which it is permissible for different
political groups to organize, promote their views through public debate and
participate in free and fair elections. These activities may be subjected to
reasonable regulation compatible with an open and democratic society. Laws which
go beyond that, and which undermine multi- party democracy, will be invalid.
What has to be decided, therefore, is whether this is the effect of the
disputed legislation.
-
The applicants contend
that the proportional representation system is an integral part of the
Constitution, that the purpose of the ante-defection provision is to protect
this system and that any interference with these provisions is an interference
with the multi-party system of democratic government contemplated by section
1(d) of the Constitution.
Proportional Representation
-
In support of this
contention reliance was placed by the applicants on constitutional principle
VIII which was one of the principles with which the Constitution had to comply.
Constitutional principle VIII provides:
"There shall be representative government
embracing multi-party democracy, regular elections, universal adult suffrage, a
common voters' roll, and, in general, proportional representation."
-
Significantly, however,
section 1(d) of the Constitution incorporates all the provisions of
constitutional principle VIII, save for the last requirement that refers to
proportional representation. If it had been contemplated that proportional
representation should be one of the founding values it is difficult to understand
why those words were omitted from section 1(d). Textually, proportional
representation is not included in the founding values. Nor, in our view, can it
be implied as a requirement of multi-party democracy.
There are many systems of multi-party democracy
that do not have an electoral system based on proportional representation.
-
The applicants contend,
however, that an anti-defection provision is an essential component of an
electoral system based on proportional representation. This, so the contention
goes, is necessary to ensure that the results of an election are not affected
by the defection of persons who gained their seats in a legislature solely
because of their position on the party list. It is the party, and not the
members, which is entitled to the seats, and if a member is allowed to defect,
that distorts the proportionality that the system was designed to achieve.
-
There is a tension
between the expectation of voters and the conduct of members elected to
represent them.
Once elected, members of the legislature are
free to take decisions, and are not ordinarily liable to be recalled by voters
if the decisions taken are contrary to commitments made during the election
campaign.
-
It is often said that
the freedom of elected representatives to take decisions contrary to the will
of the party to which they belong is an essential element of democracy. Indeed,
such an argument was addressed to this Court at the time of the certification
proceedings where objection was taken to the transitional ante-defection
provision included in Schedule 6 to the Constitution. It was contended that
submitting legislators to the authority of their parties was inimical to
"accountable, responsive, open, representative and democratic government;
that universally accepted rights and freedoms, such as freedom of expression,
freedom of association, the freedom to make political choices and the right to
stand for public office and, if elected, to hold office, are undermined; and
that the anti-defection clause militates against the principles of
'representative government', 'appropriate checks and balances to ensure
accountability, responsiveness and openness' and 'democratic
representation'."
-
This Court rejected that
submission holding:
"Under a list system of proportional
representation, it is parties that the electorate votes for, and parties which
must be accountable to the electorate. A party which abandons its manifesto in
a way not accepted by the electorate would probably lose at the next election.
In such a system an anti-defection clause is not inappropriate to ensure that
the will of the electorate is honoured. An individual member remains free to
follow the dictates of personal conscience. This is not inconsistent with
democracy.
. An ante-defection clause enables a political
party to prevent defections of its elected members, thus ensuring that they
continue to support the party under whose aegis they were elected. It also
prevents parties in power from enticing members of small parties to defect from
the party upon whose list they were elected to join the governing party. If
this were permitted it could enable the governing party to obtain a special
majority which it might not otherwise be able to muster and which is not a
reflection of the views of the electorate.
This objection cannot be sustained."
-
It does not follow from
this, however, that a proportional representation system without an ante-
defection clause is inconsistent with democracy. It may be that there is a
closer link between voter and party in proportional representation electoral
systems than may be the case in constituency-based electoral systems, and that
for this reason the argument against defection may be stronger than would be
the case in constituency-based elections. But even in constituency- based
elections, there is a close link between party membership and election to a
legislature and a member who defects to another party during the life of a
legislature is equally open to the accusation that he or she has betrayed the
voters.
-
The fact that a
particular system operates to the disadvantage of particular parties does not
mean that it is unconstitutional. For instance, the introduction of a
constituency-based system of elections may operate to the prejudice of smaller
parties, yet it could hardly be suggested that such a system is inconsistent
with democracy. If defection is permissible, the details of the legislation
must be left to Parliament, subject always to the provisions not being
inconsistent with the Constitution. The mere fact that Parliament decides that
a threshold of 10% is necessary for defections from a party, is not in our view
inconsistent with the Constitution.
Rule of law
-
Our Constitution
requires legislation to be rationally related to a legitimate government purpose.
If not, it is inconsistent with the rule of law and invalid.
-
In the pharmaceuticals
Manufacturers case it was pointed out that rationality as a minimum requirement
for the exercise of public power, "does not mean that the courts can or
should substitute their opinions as to what is appropriate, for the opinions of
those in whom the power has been vested. As long as the purpose sought to be
achieved by the exercise of public power is within the authority of the
functionary, and as long as the functionary's decision, viewed objectively, is
rational, a court cannot interfere with the decision simply because it
disagrees with it or considers that the power was exercised
inappropriately." This applies also and possibly with greater force to the
exercise by Parliament of the powers vested in it by the Constitution,
including the power to amend the Constitution.
-
The final issue with
regard to the founding values and rule of law relates to the filing of vacant
seats. Members elected on party lists are subject to party discipline and are
liable to be expelled from their party for breaches of discipline. If that
happens they cease to be members of the legislature.
-
Defecting members who
form or join another party become subject to that party's discipline and are equally
liable to expulsion for breaches of discipline.
Thus, if a defecting member is subsequently
expelled from his or her new party, or if a member dies, provision has to be
made for how the vacant seats are to be filled.
-
In the result the
objection to the four Acts on the grounds that they are inconsistent with the
founding values and the Bill of Rights must fail. That makes it unnecessary to
consider whether such provisions can be amended by inference, or whether it is
necessary if that be the purpose of an amendment, to draw attention to this in
the section 74(5) notices, and to state specifically that the provisions of
section 74(1) or 74(2), as the case may be, are applicable to such
amendments." The distinguishing feature between 'constituency-based
representation' and 'proportional representation' in a representative democracy
is that in the case of the list system proportional representation, members are
elected on party lines. They are subject to party discipline. They are liable
to be expelled for breach of discipline. Therefore, to give effect to the
concept of proportional representation, Parliament can suggest 'open ballot'.
In such a case, it cannot be said that 'free and fair elections' would stand
defeated by 'open ballot'.
As stated above, in a constituency-based
election it is the people who vote whereas in proportional representation it is
the elector who votes. This distinction is indicated also in the Australian
judgment in King v. James (supra). In constituency-based representation, 'secrecy'
is the basis whereas in the case of proportional representation in a
representative democracy the basis can be 'open ballot' and it would not
violate the concept of 'free and fair elections' which concept is one of the
pillars of democracy.
Further, every vote on a motion inside the House
is by an open ballot. The election of a Speaker, Deputy Speaker of the House of
the People and the Deputy Chairperson of the Council of States is by a division
which is a system of open ballot. Reference may be made in this respect to Rule
7, 8, 364, 365, 367, 367A, 367AA and 367B of Rules of Procedure and the Conduct
of Business in the Lok Sabha and Rule 7, 252, 253 and 254 of Rules of Procedure
and Conduct of Business in the Council of States.
In above view, the justification of the impugned
amendment on the reasoning that open voting eradicates the evil of cross-voting
by electors who have been elected to the Assembly of the particular State on
the basis of party nomination cannot be lightly brushed aside.
The submission on behalf of the Petitioners
fails to take into account the distinction between direct elections and
indirect elections. This is not a case of direct election by an individual
voter in any particular election. This is a case of indirect election by
members of the Legislative Assembly who owe their membership to the Legislative
Assembly having been elected by reason of their being sponsored and promoted by
the political parties concerned.
The contention that the right of expression of
the voter at an election for the Council of States is affected by open ballot
is not tenable, as 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. Being a Member of
the political party on whose ticket he was elected as an MLA, in the first
place, he is generally expected to follow the directions of the party, which is
one of the basic political units in our democracy.
Since the amendment has been brought in on the
basis of need to avoid cross voting and wipe out evils of corruption as also to
maintain the integrity of our democratic set-up, it can also be justified by
the State as a reasonable restriction under Article 19(2) of the Constitution,
on the assumption that voting in such an election amounts to freedom of
expression under Article 19(1)(a) of the Constitution.
Even if we were to cast aside the view taken in
N.P. Ponnuswami and proceed on the assumption that right to vote is a
constitutional right, expanding the view taken in the case of People's Union
for Civil Liberties, there can be no denial of the fact that the manner of
voting in the election to the Council of States can definitely be regulated by
the Statute. The Constitution does not provide that voting for an election to
the Council of States shall be by secret ballot. The voting for an election to
the Council of States till now was by secret ballot due to a law made by
Parliament. It cannot be said that secret ballot in all forms of elections is a
Constitutional right.
By the amendment, the right to vote is not taken
away.
Each elected Member of the Legislative Assembly
of the concerned State is fully entitled to vote in the election to the Council
of States. The only change that has come owing to the impugned amendment is
that he has to disclose the way he has cast the vote to the representative of
his Party. Parliament would justify it as merely a regulatory method to stem
corruption and to ensure free and fair elections and more importantly to
maintain purity of elections. This Court has held that secrecy of ballot and
purity of elections should normally co-exist. But in the case of the Council of
States, the Parliament in its wisdom has deemed it proper that secrecy of
ballot should be done away with in such an indirect election, to ensure purity
of election.
The procedure by which an election has to be
held should further the object of a free and fair election. It has been noted
by the Parliament that in elections to the Council of States, members elected
on behalf of the political parties misuse the secret ballot and cross vote. It
was reported that some members indulge in cross voting for consideration. It is
the duty of the Parliament to take cognizance of such misbehaviour and
misconduct and legislate remedial measures for the same. Breach of Discipline
of political parties for collateral and corrupt considerations removes the
faith of the people in a multi party democracy. The Parliament, therefore,
necessarily legislated to provide for an open ballot. A multi party democracy
is a necessary part of the basic structure of the Constitution. An amendment to
law intended to restore popular faith in parliamentary democracy and in the
multi party system cannot be faulted.
The principle of secrecy is not an absolute
principle. The legislative Amendment cannot be struck down on the ground that a
different or better view is possible. It is well settled that a challenge to
Legislation cannot be decided on the basis of there being another view which
may be more reasonable or acceptable. A matter within the legislative
competence of the legislature has to be left to the discretion and wisdom of
the latter so long as it does not infringe any Constitutional provision or
violate the Fundamental rights.
The secrecy of ballot is a vital principle for
ensuring free and fair elections. The higher principle, however, is free and
fair elections and purity of elections. If secrecy becomes a source for
corruption then sunlight and transparency have the capacity to remove it. We
can only say that Legislation pursuant to a legislative policy that
transparency will eliminate the evil that has crept in would hopefully serve
the larger object of free and fair elections.
We would like to recall the following views of
this Court in Indira Nehru Gandhi v. Raj Narain: -
-
"The contention
that "democracy" is an essential feature of the Constitution is
unassailable. If the democratic form of government is the cornerstone of our
Constitution, the basic feature is the broad form of democracy that was known
to Our Nation when the Constitution was enacted, with such adjustments and
modifications as exigencies may demand but not so as to leave the mere husk of
a popular rule. Democracy is not a dogmatic doctrine and no one can suggest
that a rule is authoritarian because some rights and safeguards available to
the people at the inception of its Constitution have been abridged or abrogated
or because, as the result of a constitutional amendment, the form of government
does not strictly comport with some classical definition of the concept. The
needs of the nation may call for severe abnegation, though never the needs of
the rulers and evolutionary changes in the fundamental law of the country do
not necessarily destroy the basic structure of its government. What does the
law live for, if it is dead to living needs? ..." (emphasis supplied)
Thus, we do not find merit in any of the contentions raised by the petitioners
to question the Constitutional validity of the introduction through the
impugned amendment of "open ballot" system of election to fill the
seats of the representatives of States in the Council of States.
It is provided in Article 80 (2) that allocation
of seats in the Council of States to be filled by the representatives of States
and the Union Territories shall be in accordance
with the provisions in that behalf contained in the Fourth Schedule. In Article
80(4), it is provided that the representatives of each State shall be elected
by the elected Members of the Legislative Assemblies of the States in
accordance with the system of proportional representation by means of a single
transferable vote. Apart from this, the Constitution does not put any
restriction on the legislative powers of the Parliament in this regard. The
amendments in Sections 3, 59, 94 and 128 of the Representation of the People
Act, 1951 by the Representation of the People (Amendment) Act, 2003 (40 of
2003) has been made in exercise of the powers conferred on the Parliament under
Article 246 read with Articles 84 and 327 and Entry 72 of the Union List of the
Seventh Schedule to the Constitution.
The impugned amendment does not infringe any
Constitutional provision. It cannot be found to be violative of fundamental
rights in Part III of the Constitution. It is not disputed that Parliament has
legislative competence to enact the amending Act. In these facts and
circumstances, the impugned legislation cannot be struck down as
unconstitutional.
All the Writ Petitions questioning the
Constitutional validity of the amendments brought about in the Representation
of People the Act, 1951 through the Representation of the People (Amendment)
Act, 2003 (Act No.40 of 2003), being devoid of merits are hereby dismissed.
Interim orders stand vacated. All parties are
left to bear their own costs.
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