2006 Supreme(SC) 751

2006(7) Supreme 44
SUPREME COURT OF INDIA
(Under Article 32 of the Constitution of India)
Y.K. Sabharwal, CJI., K.G. Balakrishnan, S.H. Kapadia, C.K. Thakker and P.K. Balasubramanyan, JJ.
Kuldip Nayar—Petitioner
versus
Union of India & Ors.—Respondents
Writ Petition (C) No. 217 of 2004
With
Writ Petition (C) Nos. 262, 266 & 305 of 2004
Decided on 22-8-2006
Counsel for the Parties :
For the Petitioner : Rajinder Sacher, F.S. Nariman, Sr. Advocates, Sanjay Parikh, A.N. Singh, Pawan Kumar, P.H. Parekh, Subhash Sharma, Ms. Shakun Sharma, Ms. Mary Mitzy, Ms. Ranjeeta Rohatgi (for M/s. P.H. Parekh & Co.), Charanlal Sahu, In-Person, Ajay K. Agrawal, Ms. Alka Agrawal and Ms. Anamika Agrawal, Advocates.
For the Respondents : Milon K. Banerjee, A.G., G.E. Vahanvati, S.G. Aruneshwar Gupta, A.A.G., D.P. Singh, A.A.G., J.S. Attri, A.A.G., Avatar Singh Rawat, A.A.G., Ram Jethmalani, Md. Yusuf, Arun Jaitley, P.P. Rao, Dr. R.G. Padia, K. Radhakrishnan, Sr. Advocates, Gaurav Agarwal (for Attorney General of India), Naveen Kumar Singh, Avneet Toor, Sanjay Jain, Arun K. Sinha, Rajshekhar Rao, Ms. Indra Sawhney, Ms. Anil Katiyar, Ms. Vimla Sinha, Gopal Singh, Rituraj Biswas, Ms. Hemantika Wahi, Ms. Pinky Behera, Janaranjan Das, Swetaketu Mishra, Ms. Kshyama Singh, Ms. Kamini Jaiswal, Tara Chandra Sharma, Ms. Neelam Sharma, Rajeev Sharma, Ajay Sharma, Rupesh Kumar, Ms. D. Bharathi Reddy, P. Vinay Kumar, Ms. Sneha Bhaskaran (for T.V. Ratnam), S. Muralidhar, Amit Sharma, A. Mariarputham, Ms. Aruna Mathur (for M/s. Arputham, Aruna & Co.), Ranjan Mukherjee, B.S. Banthia, Ms. Ila Kapur, Abhinav Mukherji, Ms. Pooja Mahajan, Ms. Neoma Vasdev, Khwairakpam Nobin Singh, Anil Shrivastav, Saurabh Srivastava, Sanjay R. Hegde, Subramonium Prasad, Gopalakrishnan R., Abhay Kumar, Jai Kishore, K. Ramesh, Garvesh Kabra, Anuvrat Sharma (for Praveen Swarup), Ravi P. Mehrotra, Ms. Bina Madhavan (for M/s. Lawyers Knit & Co.), V.K. Sidharthan, Ng. J.R. Luwang (for M/s. Corporate Law Group), Ms. Suparna Srivastava, Ms. Deepti Singh, Rajesh Srivastava, Upamanyu Hazarika, Satya Mitra, Ms. Sumita Hazarika, S. Ravi Shankar, Ms. R. Yamunah Nachiar, Ms. Hemanandhini Deori, Ms. Lesi, Ms. A. Subhashini, Navin Prakash, S.W.A. Qadri, Devadatt Kamat, Hrishikesh Baruah, Chinmoy Pradip Sharma, Ms. Suruchi Suri, D.S. Mahra, Gopal Prasad (for Anil Kumar Jha), Jatinder Kumar Bhatia, K.N. Madhusoodhanan, R. Sathish, Intervenor-In-Person (I.A. No. 4) (N.P.), S.S. Shinde, and V.N. Raghupathy, Advocates.

IMPORTANT POINT
Amendments made in the Representation of People Act, 1951 through Representation of People (Amendment) Act 40 of 2003 by which the requirement of domicile in the State concerned for getting elected to the Council of States is deleted, cannot be struck down as unconstitutional as the impugned amendment does not infringe any constitutional provision.

Headnote:(i) Representation of People Act, 1951—Sections 3, 59, 94 and 128 as amended by Amending Act 40 of 2003, Section 80(4)—Substitution of words ‘in India’ for the words ‘in that State or Territory’ in Section 3—Qualification for membership of the Council of States —By Amending Act 2003, requirement of ‘domicile’ in the State concerned for getting elected to the Council of States is deleted—Amendment is challenged as unconstitutional, offending the principle of Federalism—Effect of the Amendment to Section 3 of the Act 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’—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—Whether the impugned amendment to Section 3 of the Act can be challenged as unconstitutional—(No).

       Held : 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. (Para 303)

       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.(Para 304)

       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 Parliaments obligations or functions.(Para 306)

       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.(Paras 289 & 290)

       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.(Para 291)

       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.(Para 294)

       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.(Para 308)

       (ii) Representation of People Act, 1951—Sections 59, 94 & 128 as amended by Amending Act 40 of 2003—Manner of voting at elections for filling up a seat in the Council of States—Open Ballot System is introduced by the Amendment Act 2003, in place of Secret Ballot—Whether there is constitutional infirmity in providing open ballot system for the Council of States—(No).

       Held : 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".(Paras 320 & 321)

       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.(Para 327)

       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.(Para 418)

       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.(Para 419)

       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. (Para 432)

       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.(Para 433)

       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. (Para 434)

       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.(Para 435)

       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.(Para 445)

       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.(Para 446)

       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.(Para 454)

       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.(Para 456)

       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. (Para 458)

       (iii) Constitution of India—Articles 247, 248, 249 and 356—Nature of Federalism in Indian Constitution—Concept of federalism in our Constitution is vis-a-vis the legislative power—Federalism under Indian Constitution leans in favour of a strong centre.

       Held : 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.(Para 54)

       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.(Para 64)

       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.(Para 72)

       (iv) Constitution of India—Article 368—Basic structure Doctrine—Whether available to determine validity of a statute—(No)—Legislation can be declared invalid or unconstitutional only on grounds, namely of lack of legislative competence and violation of any fundamental rights or any provision of the Constitution.

       Held : 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.(Paras 106 and 107)

       (v) INTERPRETATION OF STATUTES—Constitution—Rule of ‘literal construction’ is the safe rule though it may be desirable to give a broad and generous construction to the constitutional provisions.

       Held : 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. (Para 200)

       (vi) INTERPRETATION OF STATUTES—Legislative History—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.(Para 35)

       (vii) WORDS AND PHRASES—Words ‘ordinarily’ and ‘resident’—Meanings—These words 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—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—Representation of People Act, 1950—Section 20(5), (6) & (7).

       Held : 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.(Para 242)

       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.(Para 243)

       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.(Para 244)

       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.(Para 245)