KULDIP NAYAR versus UNION OF INDIA AND ORS.

Citation: [2006] SUPP. 5 S.C.R. 1 · Decided: 22-08-2006 · Supreme Court of India · Bench: Y.K. SABHARWAL · Disposal: Dismissed
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Judgment (excerpt)

1 
KULDIP NAY AR 
A 
v. 
UNION OF INDIA AND ORS. 
AUGUST 22, 2006 
[Y.K. SABHARWAL, CJ., K.G. BALA.KRISHNAN, S.H. KAPADIA, 
B 
C.K. THAKKER AND P.K. BALASUBRAMANY AN, JJ.] 
~ 
Representation of People Act, I950; Ss.I3, I4, I5, I7, I8, I9 & 201 
Representation of People Act, 1951; Ss. 3, 59, 94 and I28 with Amendment c 
Act 40 of 2003/Constitution of India, I950; Articles 19, 55, 66, 80, 249, 25I, 
324, 327, 368 and 379; Ent1y 72 of the Union List and Tenth Schedule to 
the Constitution/Government of India Acts, I915, 1919 and 1935/Rules of 
Procedure and the Conduct of Business in the Lok Sabha; Rules 7, 8, 364, 
365, 367 and 367A, 367B!Rules of Procedure and Conduct of Business in the 
Council of States: Rules 7, 252, 253 and 254: 
D 
~ 
Election to the Council of States-Eligibility-Requirement of domicile 
of the State to be represented-Deletion of by amendment from R.P. Act, 
1951-Constitutionality of-Held: The legislative history of the Constitution 
reveals that residence has never. been the constitutional requirement for 
E 
constitution of the upper House-Residence is an incident of federalism 
which could be regulated by the Parliament as qualification, a subject matter 
under Article 84 of the Constitution-Amendment, so made, does not change 
the character of the Council of the States as the election remain the law, ihe 
elected member remain representatives of the State and the choice and the 
decision as to elect the representative would remain with the State F 
~ 
Assemblies-It does not affect the role, fi1ture prerogatives of the members of 
the Council of States especially in the matter of legislation-Only the scope 
of consideration for election to the Council of States has been enlarged-
It is passed by the Parliament in its legislative competence, without 
transgressing the provisions of Part-Ill of the Constitution or any other 
~· 
provisions of the Constitution, hence not unconstitutional. 
G 
·,~ 
Amendment in R.P. Act, 1951-Principle of Federalism-Effect of 
amendment-Held: Federal Principle dominant in the Constitu'ion and is 
one of its basic features but it is not territory related-It is not the requirement 
,,,. 
~ 
H 
2 
SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R. 
A of such principle that the representative of the States must belong to that 
State-It is the electorate who would represent the interest of the State-
Hence, deletion of the requirement of residential qualification by the 
Parliament would not amount to violation of the basic features of federalism-
Though the provision of residence/domicile existed in the 1951 Act, a Statutory 
B Act, but it was not the constitutional requirement, hence its removal there-
from by wizy of the amendment is not unconstitutional and could not be 
challenged under the provi~ions of Article 368 of the Constitution. 
Role of Members of Council of States in protecting the interest of the 
State-Held: They do not vote in the Parliament at the dictate of the State 
C concerned, but according to their own views and party affiliation. 
Members of Council of States-Qualifications of-Held: The provisions 
under Article 243 of the Constitution do not add the requirement of domicile 
to the qualification for membership of the Council of States. 
State Representatives -Residence as qualification-Held: In the absence 
D of express requirement of residence as a qualification, it cannot be read into 
Articles 80 and 84 of the Constiflltion. 
E 
Power of Parliament in amending R.P. Act, 1951-Held: 1951 Act is 
enacted by the Parliament like any other law-Hence, Parliament is 
empowered to bring about amendments in it like any other Statute. 
Power of Parliament in changing law relating to election-Held: The 
Parliament is empowered to bring in such legislation-Articles 80(4) and 
327 of the Constitution. 
'Right to vote' and 'free and fair election '-Relation between-Held: 
F Right to vote is not an ingredient of the free and fair elections-In fact, right 
to vote is a concept which yield to a concept of the attainment of free and 
fair election. 
Election to the Council of States-Provisions not allowing outsiders to 
contest the election-Removal of-Held: Justified, by allowing the outsider 
G to contest the election, the Parliament has in fact widened the choice of the 
elections without altering its character. 
Right to vote in secrecy-Effect of Proviso added to Sections 59, 94 and 
148 of R.P. Act, 1951 providing for open ballot as an exception to the general
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