KULDEEP NAYAR V.

UNION OF INDIA
 INTRODUCTION

 The founding fathers of our nation, after numerous debates about the intended legislative
structure, decided upon a dual-chambered parliament for a more structured and efficient system
of policy-making. Our legislative fabric attempts to weed out, out-of equilibrium policies through
a concurrence between both the houses of the parliament. This idea of bicameralism, owing to its
varied successful precedents across the globe, has rightfully been accepted as a vital cog in the
governance of any nation that lays its essence upon the ideals of participatory democracy.
 The Rajya Sabha has always been considered to be a vital cog in the legislative structure of India. The
2003 Amendment to the People’s Representation Act, 1951 dispensed with the domicile requirement for
the election of members for the Rajya Sabha. This amendment was passed by the Parliament but
invariably led to a barrage of questions with regard to the federal compromise it caused.
 WHY KULDEEP NAYAR V. UNION OF INDIA IS A LAND
MARK JUDGEMENT?

 It laid focus on the literal or plain interpretation of the constitutional clauses as it deemed them to be
unambiguous.
 This case provided a linkage between Representation and Federalism.
 ARTICLE 19(I)(A)

 Article 19(1) (a) of the Constitution of India guarantees to all its citizens the right to
freedom of speech and expression. The law states that, “all citizens shall have the right
to freedom of speech and expression”.
FACTS OF THE CASE

 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.
 There was also amendments in Sections 59, 94 and 128 of the Representative of People Act, 1951 by which
Open Ballot System was introduced.
 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.
 There was a further challenge to the amendments in Sections 59, 94 and 128 of the RP Act, 1951 by which
Open Ballot System is introduced.
 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.
 A writ petition was filed challenging the same.
ISSUES RAISED IN THE CASE

 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?
 Whether the Open Ballot System violates the principle of “secrecy" which is 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 Ballot 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.
THE DECISION LAID DOWN BY SUPREME COURT

 The Supreme Court held that there was no requirement under the Constitution which required a person
elected to the Rajya Sabha to either be a voter or a resident in the State which the person is chosen to
represent.
 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 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.
 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.
FINAL CONCLUSION

 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 Off
CONCLUSION

 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.
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