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Kuldip Nayar V. Union of India AIR

2006 SC 3127
The execution of federalism cannot be the
same in every circumstance, variation
happens according to the homogeneity or
heterogeneity of it constituents. In the
Indian context, it is a fact that the cultural
diversity is immense and the
circumstances differ from point to point
geographically, culturally and historically.

Author Name:   Priyanka

Chakraborty

The execution of federalism cannot be

the same in every circumstance,
variation happens according to the
homogeneity or heterogeneity of it
constituents. In the Indian context, it is
a fact that the cultural diversity is
immense and the circumstances di er
from point to point geographically,
culturally and historically.

An Analysis on The Case of Kuldip

Nayar V. Union of India AIR 2006 SC

3127
A BRIEF HISTORY OF THE CASE:
1. By the Amendment of Representative of
People Act 2003, the requirement of
“domicile” in the State Concerned for
getting elected to the Council of States was
deleted.

2. There was also amendments in Sections

59, 94 and 128 of the Representative of
People Act, 1951 by which Open Ballet
System was introduced.

3 i ii d A i l 32 f h
3. By writ petition under Article 32 of the
Constitution of India, petitioner challenged
the 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.

4. There was a further challenge to the

amendments in Sections 59, 94 and 128 of
the RP Act, 1951 by which Open Ballet
System is introduced.

5. The requirement of “domicile” in the

State Concerned for getting elected to the
Council of States which was deleted in
section 3 of RP act, which, according to the
petitioner violates the principle of
Federalism, a “basic structure” of the
Constitution.

6. Also the Open Ballot System 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.

Main Contention of The Case:

Deletion of the requirement of “domicile” in
the State Concerned for getting elected to
the Council of States violates the principle
of Federalism, a basic structure of the
Indian Constitution and the Open Ballet
System violates the principle of “secrecy”.
This principle of secrecy 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.

Kuldip Nayar V. Union of India

Bench:
C.J. Y.K. Sabharwal
J. K.G. Balakrishnan
J. S.H. Kapadia
J. C.K. Thakker
J. P.K. Balasubramanyan

Issues Raised In The Case:

1. Whether by the amendment of
Representative of people Act 2003, in
which the requirement of “domicile” in the
State Concerned for getting elected to the
State Concerned for getting elected to the
Council of States is deleted violates the
principle of Federalism, a basic structure of
the Constitution?

2. Whether the Open Ballet System violates

the principle of “secrecy" which is the
subject matter of the fundamental right
under Article 19(1)(a) of the Constitution?

Major Sections Cited In The Case:

1. Representation of People Act, 1950-
Section
13D,14,15,16,17,18,19,20,21,22,23,24,30;
2. Representation of People (Amendment)
Act, 1951-Section 2, 3, 4, 5, 6, 16, 29A, 29B,
29C, 59, 62, 94, 95, 100, 125, 128, 171;
3. Constitution of India- Article 5, 6, 8, 9, 13,
14, 16, 19, 31B, 32, 51, 55, 66, 68A, 79,
80(4), 81, 82, 83, 84, 90, 91, 92, 93, 101, 105,
132, 143, 152, 163, 164, 168, 170, 173, 190,
194(1), 194(2), 213, 226, 227, 245, 246, 247,
248, 249, 250, 251, 252, 253, 254, 258(1),
290, 302, 312, 324, 325, 326, 327, 328, 329,
330, 355, 356, 356(1), 357, 368, 368(2), 379;

Acts Used In The Case:

1. Representation of the People Act, 1951
2. Representation of People (Amendment)
Act, 1951
3. Army Act, 1950
4. Government of India Act, 1915
5. Administrative Tribunal Act, 1985
6. Mines and Minerals Act, 1957

Domicile Requirement And Open Ballot

System
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.

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.

The impugned amendment and

introduction of open ballot system violates
introduction of open ballot system 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

Basic Structure Doctrine

The basic structure doctrine is an Indian
judicial principle that the Constitution of
India has certain basic features that cannot
be altered or destroyed through
amendments by the parliament.

The doctrine forms the basis of a limited

power of the Supreme Court to review and
strike down constitutional amendments
enacted by the Parliament which conflict
with or seek to alter this “basic structure”
of the Constitution. The basic structure
doctrine applies only to constitutional
amendments.

The petitioner challenged that the

amendments violate the Basic Structure of
the constitution.

But it was submitted on behalf of Union of

India that basic structure doctrine is
inapplicable to Statutes.

The Court also held that it is no part of

federal principle that representatives of
state must belong to that state. Hence, if
Indian Parliament in its wisdom had
chosen not to require residential
qualification, it would definitely not violate
basic feature of federalism. Court very
technically held that, residence is not a
constitutional requirement of Article 80(4),
it is a matter of qualification coming under
Article 84. Parliament is competent to
prescribe qualification from time to time
depending upon fact of the situation.
Question of violation of basic structure did
not arise. Court also held that the
representative character is to be read only
after the person is being elected to the
council of stated, and not before that.

Further, an ordinary legislation cannot be

challenged on ground of violation of basic
structure of Constitution. Right to be
 g
elected is pure and simple a statutory right
that can be created and taken away by
parliament and must always be subject to
statutory limitation.

Regarding the second question, the court

held that in case of list system proportional
representation, members are elected on
party lines. To give effect to concept of
proportional representation, Parliament
can suggest “open ballot”. In such a case, it
could not be said that “free and fair
elections” would stand defeated by “open
ballot”. Further, prerogative remained with
the voter to choose as to whether or not to
show his vote to authorized agent of his
party and also nowhere in law it is
mentioned that “secret ballot” is the only
system.

Respondent’s View Point

Residence was never the constitutional
requirement. It was never treated as an
essential ingredient of the structure of the
Council of States. The legislative history of
constitutional enactments like the GI Act
shows that residence or domicile is not the
essential ingredients of the structure and
the composition of the Upper House.

List of Reports Referred In The Case:

I. Australian Constitutional Law (2nd
Edition) by Fajgenbaum and Hanks;
II. Craies on Statute Law (7th Edn., 1971, p.
158);
III. Crawford on Statutory Construction
(1940 ed.) in paragraph 219 (at pp. 393-
395);
IV. Crawford on Statutory Construction,
1940 Edn., paragraph 157, pp. 240-42;
V. Dictionary of Modern Legal Usage, 2nd
Edn., by A. Garner Bryan;
VI. Griffith and Ryle on Parliament
Functions, Practice and Procedure (1989
edn., p. 119); Halsburys Laws (3rd Edn.)
(1961)Vol. 36, paragraph 606, p. 401;
VII. Irish Constitution (Constitution of India
by Basu, 6th Edn.Vol.F);
VIII. Laski: A Grammar of Politics, Fifth Edn.,
pp. 313-314);
IX. Maxwell “On the Interpretation of
Statutes”, 10th edn., pp. 50-51;
X. Maxwell on Interpretation of Statutes,
12th Edn., p. 28;
XI. Maxwell on the Interpretation of
Statutes (12th Edn., 1969, pp 74-75);
XII. New Oxford Illustrated Dictionary;
XIII. Ramanatha Aiyars Law Lexicon (edited
by Justice Y.V. Chandrachud)

Final Conclusion
· Rejecting all the grounds a unanimous 5
judge bench found no infraction of any
constitutional provision or principle.

· Admitting that India is a federal state of

its kind, the court held that ‘It is no part of
federal principle that the representatives of
state must belong to that state’. The word
‘representative of each state’ only refers to
the members and do not import any
further concept or requirement of
residence in the state.

· Similarly the court found no violation of

any constitutional provision or principle in
the amended Section 59 of RP Act insofar
as it required election to Rajya Sabha by
open ballot.

· Secrecy of ballot, the court held, was not

essential feature of democracy which is a
basic feature of our constitution.

Hence, Petition Was Disposed O .

Our Comment:
The execution of federalism cannot be the
same in every circumstance, variation
happens according to the homogeneity or
heterogeneity of it constituents. In the
Indian context, it is a fact that the cultural
diversity is immense and the
circumstances differ from point to point
geographically, culturally and historically.

Thus, in such a heterogeneous society, the

“construction of federalism often reflects
differing levels of regional identity” and
specific regional groups might be
considered more significant and few might
be left behind. The prime objective of a
representative is to sensitize the issues of
the region, help gain resources and shape
appropriate policies and in such a society,
it becomes imperative that the
representative must be of the region
himself as the underlying heterogeneity
calls for a representative who has the
inherent understanding of the situation
rather than an outsider who may not be
able to understand the regional variations.

Also the idea of a state is not merely

territorial but it is also inclusive of its
inhabitants. With reference to Article 1 of
th tit ti I di h ll b U i f
the constitution, India shall be a Union of
States and through this understanding, it
must be noted that the term
“Representatives of each State” (Article
80(4)) refers only to people residing in the
state and thus, only they can have a
capability to represent the State in the
Council of States. Owing to the
amendment in question, there are few
aspects which must be looked into so as to
realize the great threat that it causes to the
federal structure:-

I. Individuals who are not able to win at the

Lok Sabha elections or ones who may not
be able to win the Rajya Sabha seat from
their own states have been taking
advantage of this amendment to reach the
Rajya Sabha irrespective of the ideals of
federal representation.

II. Looking at the possibilities, it can

happen that in a certain situation all the
representatives of the different states
would belong to one particular state and
the ideals of diversity and State
representation in the Council of States
shall be infringed.

Present Day Scenario Under The Light of

The Case:
Owing to the above discussed amendment,
the individuals have everything to lose as
they can only watch as the principles of
rightful representation shall be tarnished
to accommodate a rather retrograde
amendment due to which the States may
not be able to voice their issues effectively.
The change is catabolic in nature leading to
the ideals of federalism, with reference to
the Rajya Sabha, now being just a muddled
expression of what was originally
established. So, the amendment to the
domicile requirements in Rajya Sabha is
indeed a great threat to the Indian
Federalist principles.
 ISBN No: 978-81-928510-1-3
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Author Bio:   LL.B (IP), IIT Kharagpur

Email:   priyankac763@gmail.com
Views:  5250
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399 Comments Sort by Top

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Kartik Bagchi
The Union Cabinet is all poised to table an
amendment to the marriage laws, which, in
the event of a divorce, would give the wife an
equal share of not only the property acquired
by the husband during or before the marriage,
but also his inherited or inheritable property.
This proposed amendment is already
creating a furore.
Like · Reply · Mark as spam · 19 · 6y

Mallikarjuna Sharma
That is quite insane proposal. Self-acquired
property can be disposed of at will - is the
established law and this contradicts it. Even
if elements of social or public interest are
there, those should not totally drown the
established law. The maintenance provisions
should be made more stringent and adequate
by reform but not such divesting of property
for a song.
Like · Reply · Mark as spam · 11 · 2y

Veeraswami Panjan
Mallikarjuna Sharma It is not divesting of
property for a song Sharmaji, when two join
in wedlock, they flurish and family become
established. This society was men
dominated, is being men dominated and I feel
bad and continue to be men dominated.
Hence, to safeguard the interest of women
folk who have to face so many illtreatment
are protected through this historic measure.
Why not we support.
Like · Reply · Mark as spam · 5 · 1y

Lakshmirajyam Jonnalagadda
Execute documents of all the property in the
name of your beloved wife and then you will
face the music. men are the strong enemeies
of the men and idiotically they see cruelity in
men and the regular and continuous female
mess in houses which lead to the disastrous
state of affairs for the men folk and it has
become a regular irony and more than 90% of
women who seek divorce recite the stupid
stanza that their live is full of thorns and
many impedements espeically after marriage
as if their life at their parental houses ran on
golden carpet. Present day should be taken
into consideration to ascertain present day
oproblems and the days of great great grand
fathers or the inception times of this Kali
Yuga.
Like · Reply · Mark as spam · 9 · 1y

Show 6 more replies in this thread

Tukaram Gaude
hi
hi
Like · Reply · Mark as spam · 5 · 6y

Jenny Kay
I am very happy today with my family. My
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Like · Reply · Mark as spam · 1 · 29w

Brijesh Mithaulia
Jenny Kay : Thank you Rose Sarah. I am
Brijesh Kumar Mithaulia from India. I am in
similar situation today, only genders have
changed. I have contacted father Dr Jude and
has asked me for some details. Will send him
shortly.
Like · Reply · Mark as spam · 28w

Brijesh Mithaulia
Its such a coincidence that I found your blog.
Like · Reply · Mark as spam · 1 · 28w

Show 4 more replies in this thread

Angel Vijayvidya
Can anyone help me.i am suffering from
dowry harassment.i am mentally have
depressed from my husband.
Like · Reply · Mark as spam · 3 · 6y

Nilesh Pawar
Go to Police Station and file Section 498A of
IPC
if getting Physical harrasment you can file
Domestice Violence in the appropriate Court
and get Protection from Husand & relatives
of husband
 Like · Reply · Mark as spam · 14 · 3y

Abhinav Vishnu
What's ur actual problem, u r not mentioned
facts here
Like · Reply · Mark as spam · 3 · 2y

Abhinav Vishnu
Is it belongs to dowry ,or, cruelty,or ,
harrassment, domestic violence,or ,adultry,or,
desertion, what is ur actual problem
Like · Reply · Mark as spam · 3 · 2y

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Anita Rao
India being democratic country and having
protective laws for women , its high time to
have special courts for women to try cases
exclusively women cases only...........
Like · Reply · Mark as spam · 23 · 6y

Sharon Chatterjee
woman courts is no solution it fact we need
capable judges who are not appointed
politically
Like · Reply · Mark as spam · 38 · 4y

A Singh
Sharon Chatterjee Right
Like · Reply · Mark as spam · 6 · 1y

Muneeta Dhiman
By demanding women courts, we ourselves
are encouraging gender discrimination in our
country. We can't encourage and demand
gender discrimination at the same time. It's
time to have more courts and efficient
judicial system. Let's demand and create
that!!!
Like · Reply · Mark as spam · 23 · 1y

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