The presumption of constitutionality of the impugned provisions and the lack of compelling reasons to stop the election process influenced the court's decision to vacate the interim stay and allow the election process to proceed.

JUDGMENT :

1. Writ Petition (C) No. 262 of 2004 is taken on board.

2. This Court on 4th June, 2004 passed an interim order to the following effect in Writ Petition (C) No. 217 of 2004:

"The Chief Election Commissioner is added as a party respondent. Issue notice to the Chief Election Commissioner. The notice is made returnable on the next sitting of the Vacation Bench. In the meanwhile, the Notification if not already published, shall not be published and if it has already been published it shall not be given effect to. It will be open to the Chief Election Commissioner to pray for modification of the order before the next Vacation Bench."

3. I.A. No 2/04. has been filed by the Union of India to vacate the interim order passed on 4th June and a similar application namely IA No. 3/04 has been filed by the Election Commission seeking vacation of the interim order.

4. We heard learned Attorney General, India, counsel for Election Commission and also senior counsel for the Union of India, Mr. Gopal Subramanium, Mr. Rajender Sachar and Mr. Nariman, senior counsel.

5. We are told that about 55 members are to be elected to the Council of States and and Presidential notification was issued on 4/6/2004 and the Election Commission of India issued 9 two separate Notifications on 4-6-2004 announcing the schedule of the various stages in the election process for filling up the seats in the Rajya Sabha from the 14 States.

6. The petitioners in writ petitions urged before us that the interim order passed by this Court shall not be vacated and the election of the members of the Council of States shall be done in accordance with the unamended law.

7. The Representation of the People (Amendment) Act, 2003 (No. 40 of 2003) was published in the official gazette whereby Section 3 of the Representation of People Act 1951 for the words "in that State or territory", the words "in India" was substituted. Further, a provision was introduced in Section 59 to the effect that "the votes at every election to fill a seat or seats in the Council of States shall be given by open ballot". Constitutional validity of the above amendment is challenged before us on the ground that the first part of the amendment would affect the federal features of the Constitution and the second part of the amendment by doing away with the secrecy of the ballot would affect the free and fair election. According to the counsel for the petitioners these two features form basic structure of the Constitution.

8. The counsel for the Union of India and Election Commission submitted that in view of the Article 329 (b) of the Constitution, the interim order may be vacated as this Court ought not to interfere with the election process which has already commenced pursuant to the Presidential Notification issued on 4-6-2004. It is also contended that these amendments do not affect any of the basic features of the Constitution.

9. We have considered the broad aspect of the natter and having regard to the contentions advanced in these cases, the petitions filed by Mr. Kuldip Nayar and Mr. Inderjeet require detailed consideration and writ petitions are accordingly admitted. However, we do not think that it is just and proper that the interim stay should continue. We hereby vacate the interim stay. As the Presidential Notification has already been issued and the election process has started we do not think that there are compelling reasons to stop the election process at this stage; especially in view of the presumption of constitutionality of the impugned provisions.

10. In view of the stay granted by the is Court, the Election Commission could not take any further action pursuant to the Notification and it is open to the Election Commission to revise the election schedule, if necessary and proceed with the election.

11. In the event these petitions are allowed and the amended provisions are found to be unconstitutional, we consider it expedient to give the following directions to meet such contingency:

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