Kuldip Nayar vs Union of India

 Kuldip Nayar vs Union of India - Supreme Court Case Summary of Leading Case - 

On 22nd August, 2006, a Constitution Bench in Kuldip Nayar vs Union of India & Ors. [Writ Petition (Civil) No. 217 of 2004] set aside the challenge to the constitutional validity of the amendment made in the Representation of the People Act, 1951 whereby the requirement of “domicile” for getting elected to the Upper House (Council of States or Rajya Sabha) was done away with. Referring to the legislative history of constitutional enactments like the Government of India Act, 1935, the Bench said “residence or domicile are not the essential ingredients of the structure and the composition of the Upper House.” It said “residence was never the constitutional requirement” and “has been treated just a matter of qualification.”

The Bench observed that the “qualification of residence has never been a constant factor” and ownership of assets, dwelling house, income, residence etc. have been “considered as qualification from time to time depending upon the context and the ground reality”. The Indian 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”, said the Bench.

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The Bench upheld another amendment in the Representation of the People Act, 1951, introducing open ballot system, in place of secret ballot for elections to the Upper House holding that “voting at elections to the Council of States cannot be compared with a general election.” In a general election, the Bench said “there is no party affiliation and hence the choice is entirely with the voter” which 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 Bench said “the context in which General Elections are held, secrecy of the vote is necessary in order to maintain the purity of the Election system” and “every voter has a right to vote in a free and fair manner and not disclose to any person how he has voted” but the context entirely changes in case of a “voter who is elected on the ticket of a political party.” It said that “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.” The Bench further said that “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.”

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