CASE OF KULDEEP NARAYAN V.

UNION OF
INDIA

BY
Antariksh Singh Jamwal
Intern
1st Year,
Lloyd Law College
Greater Noida,
Uttar Pradesh
Mob-7832963901
Email-antariksh.singhjamwal@lloydlawcollege.edu.in

26th April 2020

Background of the case

In 2003 some amendments were made in Representation of People Act 1951 and a new act
was passed on 28th August 2003. In  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. The writ petition was dismissed by the Supreme Court.It was decided by the
Hon’ble Supreme court that 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. This case
isknown for creating a clear point of view of federalism and clearing that India is a federal
nation which is more inclined towards central government. This case is popularly known as
KuleepNayarv. Union of India.1

Laws under issues

On 28th August 2003 some amendments were made in Representation of People Act 2. A new,
amended law was passed in 20033 which amended sections such as Section 3, 59, 94, 128.
Which was challenged by the petitioner. The Sections Stated:

Section 3 before Amendment

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. After
the amendment the words 'in that state or territory', the words 'in India' were substituted.

Section 56 before amendment

1
Kuldip Nayar v. Union of India AIR 2006 SC 3127.
2
Representation of People Act, 1951.
3
Representation of People (amendment) Act 40 of 2003.
 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. After
the amendment the provision was added in the end of the section is “ Provided that the
votes at every election to fill a seat or seats in the Council of States shall be given by open
ballot.”

Section 94 before the amendment

Provided that the votes at every election to fill a seat or seats in the Council of States shall be
given by open ballot.After the amendment of 2003 one provision was added in the end of the
section which was “Provided that this Section shall not apply to such witness or other
person where he has voted by open ballot.”

Section 128 before the amendment.

Maintenance of secrecy of voting-.(1) 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.

2) 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. After the
amendment of 2003 following provision was added in the section “ 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 raised

Majorly two issues were 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 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?

Petitioner’s Argument.
 1) Petitioner argued that the amendment in section 3 of RP Act 1951 4 is violating the
principle of federalism. Shri Sanchar the learned council from side petitioner argued
that the amendment in the act is structure the republic structure which is the
foundation of democracy.
2) Petitioners also argued that the parliamentconstituted 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.
3) It was argued by the learned counsel that India has a bicameral legislature and has 2
house and Council of state is there to represent the states .The new amendment is
violating the purpose of the Rajya Sabha if person elected is not a domicile of the
particular state
4) The counsel argued that the right of secrecy in election of Rajya Sabha is an essential
part of democracy that is based on free and fair election. A voter must have its right to
express their view through their votes. The amendment violates the right of the
secrecy by resorting to open ballot system.
5) It was argued by the petitioner that the following amendment infringes 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.

Respondent’s Argument

1) Respondent argued that amendments became necessary in view of various

deficiencies experienced in the working of the RP Act, 1951.
2) Respondent also argued that hat the said amendments did not alter or distort the
character of the Council of States and that the concept of residence/domicile is a

4
Representation of People Act, 1951.
 matter of qualification under Article 84(c) which is to be prescribed by the Parliament
under the Indian Constitution unlike the US Constitution.
3) The counsel argued that 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.
4) The learned counsel argued that due to emerging trend of cross voting the act was
important an these kinds of things are incorporated from this act
5) Respondent contended that according to ethics committee "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"5.
6) The counsel further submitted that the Secret Ballot is not the inflexible or mandatory
procedure to conduct free and fair election.

Composition of Parliament

Article 79 of the Indian Constitution explains the composition of the parliament which
mentions the President and the 2 houses i.e. House of People and Council of States. The
Indian Parliament is Bicameral in nature. Both the house differs from each other in many
senses. The houses are coequal in status. The Lok Sabha is democratic chamber because its
members are directly elected by the General Public on the basis of adult suffrage. The
council of ministers are responsible are responsible for Lok Sabha. Rajya Sabha and its
members are not elected by the general elections. In case of Rajya Sabha there is no general
election and experienced public figures are directly 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.

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
5
Ethics Committee of Parliament Report, 1-12-1998.
Territories on the basis of population, the formula being one seat for each millions of
population for the first five million and thereafter one seat for every two million population.
An advantage is given to the state with less population which is called as weighted
proportional representation. This system helps in giving due representation to minority
groups. The members of the Rajya Sabha are elected by the elected member of State
Legislative Assembly in accordance of weighted proportional representation by means of
single transferable vote6. There are 12 nominated members in Rajya Sabha which are
nominated by the President on the advice of council of minister. There is no difference in
between the status of elected member and nominate members except that elected members
can participate in election for president whereas nominated members cannot participate.

Federalism

There are several debated that which form of federalism is applicable in India. According to
some India is Federal state whereas some say that India is a quasi- Federal state Indian
Constitution is aid to be a federal structure only because it is said that it has clear demarcation
of boundaries between central & the state government similar to that of U.S. India having
legislative and executive authority divided between the centre and the state. In the case of
State Of West Bengal v. Union Of India7it was decided by the apex court that the
constitution of India doesn’t follow the principle of absolute federalism.

In the case of Dr. Pradeep Jain Etc v. Union of India and Ors8it was decided by the apex
court that India is not a federal state in the traditional sense of the word whereas it is not a
compact of sovereign State which have come together to form a federation by ceding
undoubtedly federal features. In the case of State of Rajasthan & Ors. Etc. Etc v. Union of
India Etc.9the supreme court of India decided that at 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. In the case of S.R. Bommai and others
v. Union of India10 may be touched. Our Constitution has a federal structure. Several

6
Constitution of India,Article 80(1)(b) and 80(4).
7
State Of West Bengal v. Union Of India1963 AIR 1241, 1964 SCR (1) 371.
8
Dr. Pradeep Jain Etcv. Union of India and Ors1984 AIR 1420, 1984 SCR (3) 942.
9
State of Rajasthan & Ors. Etc. v. Union of India Etc.1977 AIR 1361, 1978 SCR (1) 1
10
 S.R. Bommai and others v. Union of IndiaAIR 1994 SC 1918, JT 1994 (2) SC 215, 1994 (2) SCALE 37,
(1994) 3 SCC 1, 1994 2 SCR 644
provisions of the Constitution unmistakably show that the Founding Fathers intended to
create a strong centre

In the case of State of Karnataka v. Union of India & Anr.11It was observed that India is not
a federal structure like U.S.A whereas India is a quasi-federal structure.

Whereas in the case of Ganga Ram Moolchandaniv. State of Rajasthan12 the Supreme Court
restated: Indian Constitution is basically federal in form and is marked by the traditional
characteristics of a federal system, namely supremacy of the Constitution, division of power
between the Union and States and existence independent judiciary.

In the present case it was decided by the Hon’ble Supreme court that 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.

Free and Fair Elections

Democracy is a part of the basic structure of the constitution 13 free and fair election was a
concept inherent in the democratic values adopted by our polity. Free and fair election is
base of democracy. In the case of KihotoHollohanv. Zachillhu& Ors14it was decided by the
Supreme Court that free and fair elections are basic features of democracy.

In the case of Union of India v. Association for Democratic Reforms & Anr.15 Decided that
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); (c) holding of any

11
State of Karnataka v. Union of India & Anr.1978 AIR 68, 1978 SCR (2) 1
12
Ganga Ram Moolchandani v. State of Rajasthan and others (2001) 6 SCC 89
13
Kesavananda Bharati v. State Of Kerala And Anr (1973) 4 SCC 225
14
KihotoHollohanv.Zachillhu& Ors992 Supp (2) SCC 651
15
People’s Union Of Civil Liberties v. Union Of India & Anr (2002) 5 SCC 294
asset (immovable or movable) or any educational qualification is not the eligibility criteria to
contest election.

In the case of People's Union for Civil Liberties (PUCL)16, 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." Free and fair elections are very important in a democratic and
vast country like India.

Basic structure and statute

The word basic structure is not mentioned anywhere in the constitution this concept
developed with the passage of time because of interference of judiciary to protect the basic
rights of the people The First Constitution Amendment Act, 1951 was challenged in the
Shankari Prasad v. Union of India17case. The amendment was challenged on the ground that
it violates the Part-III of the constitution and therefore, should be considered invalid. The
Supreme Court held that the Parliament, under Article 368, has the power to amend any part
of the constitution including fundamental rights. The Court gave the same ruling in Sajjan
Singh v. State of Rajasthan18case in 1965.

In the case of Golak Nath v. State of Punjab19 case in 1967, the Supreme Court overruled
itsprevious. The Supreme Court decided that the Parliament has no power to amend Part III
of the constitution as the fundamental rights are transcendental and immutable. According to
the Supreme Court ruling, Article 368 only lays down the procedure to amend the
constitution and does not give absolute powers to the parliament to amend any part of the
constitution.

In the case of Kesavananda Bharati v. State Of Kerala And Anr 20the basic structure of
constitution was explained which stated several features these features includes (1)
Supremacy of the constitution. (2) Republican and democratic form of govt. (3) Secular
character of constitution. (4) Separation of power. (5) Federal character of constitution.

16
People's Union for Civil Liberties (PUCL)] v. Union of India (2003) 4 SCC 399.
17
Shankari Prasad v. Union of India 1951 AIR 458, 1952 SCR 89

18
Sajjan Singh v. State of Rajasthan 965 AIR 845, 1965 SCR (1) 933
19
I. C. Golaknath& Ors v. State Of Punjab 1967 AIR 1643, 1967 SCR (2) 762

20
Supra 13
Issue of “Domicile”

According to Representation of people act 1951 Section 2(e) defines elector as “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 19 of the Representation Of people’s Act talks about the conditions of registration it
states “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.” In
section 20 ordinary resident has been defined.

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.

It was submitted by the petitioners that federalism is the part of basic structure of constitution
of India and Amendment in section 3 is violating the basic structure of the constitution. The
representative of state in Rajya Sabha should be the resident of the state itself to maintain the
federal structure of the country where every state has its own recognition. Petitioner argued
that 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, it violates 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.  It is further contended
that the requirement of domicile makes the upper House an 'alter ego' of the lower House.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. 

For this respondent argued 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. They argued that in if we see the legislative history,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.

Issue of Secrecy

 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". 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 was contended by the petitioner that
secrecy of the vote is very important in elections Rajya Sabha

It was submitted by the respondent that 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”

Respondent argued 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: - "19.
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."

Article 19(1)(a)
It was contended by the petitioner that the amendment 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.

It was contended by the respondent 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.

Judgement at Glance

1) Rejection of all the grounds by a unanimous result by 5 bench judge to because no

unconstitutionality in the new act.
2) 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.
3) Court found that secrecy of ballot is not an essential feature of democracy and
constitution.

Judgement Overview
The apex Court, regarding the first question, decided that representative of the states must be
interpreted to connote persons who are elected to represent state in council of state - It is
election that makes person elected representative - In order to be elected to council of state, a
person need not be a representative of state beforehand.

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 . Since amendments had been brought in on basis of need to avoid cross voting and
wipe out evils of corruption as also to maintain integrity of democratic set-up, it could also be
justified by state as a reasonable restriction under Article 19(2) of the Constitution. Hence,
amendments could not be found to be violative of fundamental rights in Part III of the
Constitution and they could not be struck down as unconstitutional.

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. 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 situation - Question of violation of basic structure did not arise. Further,
an ordinary legislation cannot be challenged on ground of violation of basic structure of
Constitution. Right to be 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.

References

 Kuldip Nayarv. Union of India AIR 2006 SC 3127.

 Representation of People Act, 1951.
 Representation of People (amendment) Act 40 of 2003.
 Representation of People Act 1951
 Ethics Committee of Parliament Report 1-12-1998.
  Constitution of India, Article 80(1)(b) and 80(4)
 State of West Bengal v. Union Of India1963 AIR 1241, 1964 SCR (1) 371.
 Dr. Pradeep Jain Etc v. Union of India and Ors 1984 AIR 1420, 1984 SCR (3) 942.
 State of Rajasthan & Ors. Etc. Etc v. Union of India Etc.1977 AIR 1361, 1978 SCR
(1) 1
  S.R. Bommai and others v. Union of IndiaAIR 1994 SC 1918, JT 1994 (2) SC 215,
1994 (2) SCALE 37, (1994) 3 SCC 1, 1994 2 SCR 644
 State of Karnataka v. Union of India & Anr.1978 AIR 68, 1978 SCR (2) 1
 Ganga Ram Moolchandaniv. State of Rajasthan and others (2001) 6 SCC 89
 Kesavananda Bharati v. State Of Kerala And Anr (1973) 4 SCC 225
 KihotoHollohanv. Zachillhu& Ors992 Supp (2) SCC 651
 People'S Union Of Civil Liberties v. Union Of India & Anr (2002) 5 SCC 294
 People's Union for Civil Liberties (PUCL)] v. Union of India (2003) 4 SCC 399.
 Shankari Prasad v. Union of India 1951 AIR 458, 1952 SCR 89

 Sajjan Singh v. State of Rajasthan 965 AIR 845, 1965 SCR (1) 933
 I. C. Golaknath& Ors v. State Of Punjab 1967 AIR 1643, 1967 SCR (2) 762

About the Author

Antariksh Singh Jamwal is a 1styear B.A.LLB student at Lloyd Law College, Greater
Noida. His key areas of interest are Criminal law, Companies Law, Contracts,
constitution law, IPR, IBC and also, debating. His interest in legal research and legal
writing cannot be kept aside from her areas of interests. During her first 1st year of law
school he has participated in various parliamentary debates, Modal United Nations and a
Trial Advocacy competition 2020, at GH Raisoni Law College, Nagpur where he was the
Quarter Finalist. He is a person who believes in new ideas and effectuating them.