IN THE SUPREME COURT

OF INDIA
Case Concerning
Constitutional Law

KULDIP NAYAR
(PETITIONER)

VS.
UNION OF INDIA
(RESPONDENT)

MEMORANDUM FOR THE RESPONDENT

COUNSEL ON BEHALF OF THE RESPONDENT
ALISHA FATIMA KHAN
Roll No.-19

TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS..............................................................................................3
2. INDEX OF AUTHORITIES................................................................................................4
ACTS, LEGISLATIONS AND STATUTES
TABLE OF CASES
BOOKS

3. STATEMENT OF FACTS..................................................................................................6
4. ISSUES RAISED................................................................................................................7
5. SUMMARY OF ARGUMENTS.........................................................................................8
6. WRITTEN SUBMISSIONS................................................................................................9
7. PRAYER............................................................................................................................13
8.

LIST OF ABBREVIATIONS
&......and
i.e..that is
A.I.R...All India Report
Bom.... Bombay
Ch. D...Chancery Division
GuaGuwahati
Mad
Madras
Ors...Others
S.C........Supreme
Court
v.........versu
s

INDEX OF AUTHORITIES

Acts/ Statutes/ Legislations:

The Constitution of India, 1950

The Representation of People Act, 1950

Cases:
Foreign Judgements:
R. v. Jones[1986] 2 S.C.R. 284

United Democratic Movement v.

President of the Republic of South Africa...2003 (1) SA
472 (CC)

Indian Judgements:
B.R. Patil S/O Ramachandrappa v.
Rajeev Chandrashekar, Major & Ors.ILR 2007 KAR 317
Indira Gandhi v. Raj Narain.AIR 1975 SC 2299
Jyoti Basu v. Debi Goshal.....(1982) 1 SCC 691
Peoples Union of Civil Liberties v. Union of India..AIR 2003 S 2363
Raghbir Singh Gill Vs. Gurcharan Singh TohraAIR 1980 SC 1362

Shamdasani v. Central Bank of India.AIR 1952 SC 59

S.R. Boommai v. Union of India......AIR 1994 SC 1918

State of Karnataka v. Union of India & Anr.1978 (2) SCR 1
State of West Bengal v. Union of IndiaAIR 1963 SC 1241

Books:

M.P Jain, The Constitutional Law of India (7th Edition, 2014)

Sujata V. Manohar , Constitutional Law of India (3rd edition, 2010)

STATEMENT OF FACTS
The Representation of People Act, 1951 is amended by the Parliament on 28 th August, 2003 by
the Amendment Act of 2003. Section 3 of the Representation of Peoples Act, 1951 provides the
qualifications for membership of the Council of States. The amendment has removed the
qualification of domicile for the membership of the Council of States. The amended section is
read as:
Qualification of membership 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 India.
Section 59 and 128 of the Act is also amended. It provided for secret ballot system for the
election of members of the Council of States. The amended Section 59 is read as:
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, 1[and, save as expressly provided by this Act, no
votes shall be received by proxy.
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 128 is read as:
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 an election shall maintain, and
aid in maintaining, the secrecy of the voting and shall not (except for some purpose authorised
by or under any law) communicate to any person any information calculated to violate such
secrecy:
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.
(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 with fine or with both.

ISSUE RAISED
1. WHETHER

THE

DELETION

OF

DOMICILE

FROM

SECTION

IS

UNCONSTITUTIONAL?
2. WHETHER THE INTRODUCTION SECRECY OF VOTING SYSTEM FOR
ELECTION OF MEMBERS OF THE COUNCIL OF STATES IS VOILATING
CONSTITUTION?

SUMMARY OF ARGUMENTS
1. WHETHER THE DELETION OF DOMICILE FROM SECTION 3 IS
UNCONSTITUTIONAL?
Section 3 of the Representation of People Act, 1951 after the Amendment Act of 2003 has
removed domicile as a qualification for membership of the Council of States. The

amendment is not unconstitutional. It neither violates the federal structure of the Council
of States nor is violating the federal structure of the Indian Constitution.
Residence is not an essential requirement or essence of the Council of States.
representative of each state does not denote that the representative should be an ordinary
citizen or resident of that place.
2. WHETHER THE INTRODUCTION SECRECY OF VOTING SYSTEM FOR
ELECTION OF MEMBERS OF THE COUNCIL OF STATES IS VOILATING
CONSTITUTION?
Section 59 prescribes the manner of voting. The amendment in the Act is not violative of
Article 194 and even does not infringes Article 19. Hence, it is not violative of the
Constitution. And apart it helps in maintaining purity of elections.

PLEADINGS

CONTENTION 1: DELETION OF DOMICILE FROM SEC. 3 OF THE REPRESENTATION

OF PEOPLE ACT, 1951 IS NOT UNCONSTITUTIONAL.

Section 3 of the Representation of Peoples Act, 1951 provides the qualifications for membership
of the Council of States. Prior to the Amendment Act 40 of 2003 which came into force on 28 th
August, 2003 for a person to be qualified as a representative of any State or Union territory in
the Council of States , he has to be an elector for a Parliamentary Constituency in that State or
territory. But after the impugned amendment, there is no need to be an elector for a
Parliamentary Constituency of the State or territory to be qualified as a representative of that
State or territory in the Council of States.

CONTENTION 1.1: THE IMPUGNED AMENDMENT DOES NOT VIOLATE THE FEDERAL
STRUCTURE OF THE COUNCIL OF STATES
Indian Constitution is quasi-federal in nature. It is no part of Federal principle that the
representatives of the States must belong to that State. There is no such principle discernible as
an essential attribute of Federalism, even in the various examples of upper chamber in other
countries. Thus, the impugned amendment is not violative of federal character of the
Constitution.

CONTENTION 1.1.1: IN TRUE SENSE, INDIA IS NOT FEDERAL BUT QUASI-FEDERAL

Indian Federation is a unique federation. It is a class by itself. It does not fit in any of the norms
accepted for a federal Constitution.1 In the case of State of West Bengal v. Union of India2, India
Constitution was described as a Constitution which is not true to any traditional pattern of
federation. In true sense, Indian Constitution is both unitary and federal at the same time.
In the case of State of Karnataka v. Union of India & Anr.3, Justice Untwalia observed that Indian
Constitution is quasi-federal in nature. He said that our Constitution is not of a federal character
where separate, independent and sovereign State could be said to have joined to form a nation as
in the United States of America or as may be the position in some other countries of the world. It
is because of that reason that sometimes it has been characterized as quasi-federal in nature.

While considering the federal character of Indian Constitution, Justice A.M. Ahmadi said that the
Constitution of India is differently described, more appropriately as 'quasi- federal' because it is a
mixture of the federal and unitary elements, leaning more towards the latter but then what is
there in a name, what is important to bear in mind is the thrust and implications of the various
provisions of the Constitution bearing on the controversy in regard to scope and ambit of the
Presidential power under Article 356 and related provisions.4 But then, India is not a federal State
in the traditional sense of the term. There can be no doubt as to the fact, and this is of utmost
significance for purposes at hand, that in the context of India, the principle of federalism is not
territory related. This is evident from the fact that India is not a true federation formed by
agreement between various States and territorially it is open to the Central Government under
Article 3 of the Constitution, not only to change the boundaries, but even to extinguish a State. 5
Further, when it comes to exercising powers, they are weighed heavily in favour of the Centre, so
1 Sujata V. Manohar , Constitutional Law of India (3rd edition, 2010)
2 AIR 1963 SC 1241
31978 (2) SCR 1
4 S.R. Boommai v. Union of India, AIR 1994 SC 1918
5 State of West Bengal v. Union of India, (1964) 1 SCR 371

much so that various descriptions have been used to describe India such as a pseudo-federation
or quasi- federation in an amphibian form, etc. The Constitution provides for the bicameral
legislature at the centre. The House of the People is elected directly by the people. The Council
of States is elected by the Members of the Legislative assemblies of the States. It is the electorate
in every State who are in the best position to decide who will represent the interests of the State,
whether as members of the lower house or the upper house.
It is no part of Federal principle that the representatives of the States must belong to that State.
There is no such principle discernible as an essential attribute of Federalism, even in the various
examples of upper chamber in other countries.

CONTENTION 1.1.2: BASIC STRUCTURE PRINCIPLE IS NOT AVAILABLE FOR INVALIDATION FOR
ORDINARY LEGISLATIONS

Basic structure doctrine is applicable to test validity of a constitutional amendment. Ordinary

laws are not subject to the test of the Basic Structure of the Constitution and the same is applied
only to determine the validity of Constitutional Amendments. Mathew J., in Indira Gandhi v. Raj
Narain6, has aptly stated: The Concept of a basic structure as brooding omnipresence in the sky
apart from specific provisions of the constitution is too vague and indefinite to provide a
yardstick for the validity of an ordinary law.

Justice Chandrachudh in his esteemed view, one cannot logically draw an inference from this
ratio that ordinary legislation must also answer the same test as a constitutional amendment. He
also justifies his stand on the ground that the amending power is subject to the theory of Basic
Structure because it is a constituent power of the Parliament. This essentially refers to the
distinction between legislative power and constituent power. He brings out this distinction to
emphasize the point that since the two are not the same a higher power should be subject to a
6

limitation which will not operate upon a lower power and there would be no paradox same
genus, they operate at different fields and are therefore subject to different limitations. As far as
the opinion of Chief Justice Ray is concerned he believes that ordinary laws shall not be subject
to the test of Basic Structure as by doing so one would equate legislative measures with
Constitution Amendment.7 According to Justice Raj in the same case, application of basic
structure doctrinal rule will mean rewriting the Constitution and robbing the Legislature of acting
within the framework of the Constitution. Similar can be inferred from judgment in State of
Karnataka v. Union of India and Anr8

Federalism is the basic structure of Indian Constitution. But Indian Constitution is not federal in
true sense. It can be considered as quasi-federal. Since, India is not federal in strict sense and the
Council of States is not of federal character. Thus, the impugned amendment is not affecting of
federal character of the Council of States. Apart, the doctrine of basic structure does not apply to
the ordinary law. Hence, the impugned amendment is not unconstitutional.

7 AIR 1975 SC 2299

8 AIR 1978 SC 68.

CONTENTION 1.2: RESIDENCE IS NOT A CONSTITUTIONAL REQUIREMENT

Article 84 of the Constitution of India provides the qualification for membership of Council of
States. As per the article, a person has to be a citizen of India and of age 30 years or above. The
term residence as argued by the petitioner is not an essence of the Council of States as it is no
here mentioned in the Constitution that a person to be a member has to be a resident and the term
representative of each state as mentioned in Article 80(c), hen interpreted does not mean that a
representative necessarily need to be resident of the State or the territory.

There is no such constitutional requirement to be a resident or elector of the State or the Union
territory to be a representative of that State or the territory in the Council of States. Hence, the
impugned amendment does not violate the Constitution.

CONTENTION 1.2.1: RESIDENCE IS NOT AN ESSENCE OF THE COUNCIL OF STATES.

The Representation of Peoples Act, 1951 prior to the impugned amendment required a person to
be a resident or say domicile or elector of a Parliamentary Constituency of the State or the Union
territory to be a member of the Council of States representing that State or territory. This
qualification was struck down as to the Parliament, there seemed no need of such qualification as

this qualification have lead to various malpractices such as forging the documents to be an
elector of the State or the territory. By the impugned amendment, the qualification is made
broader and the amendment became necessary for ensuring representation of unrepresented
States.
There is no constitutional requirement for a member of the Council of States to be an elector or
ordinary citizen of the State he or she is represents and, therefore the word State appearing in
clause (4) of Article 809 does not compromise the requirement of residence.

If we look at the legislative and constitutional history, residence was never an essential part of
Council of States.

Constitution has established a federal system of Government with bi-cameral legislature at the
Centre which is not something which was grafted in the Constitution for the first time. Its history
goes back to Government of India Act, 1915 as amended in 1919. Even under the Government of
India Act, 1919, the qualification of residence in relation to a particular constituency was
considered to be unnecessary.10 This position is also indicated by the provisions of the
Government of India Act, 1935 under which the Legislature at the Centre was bi-cameral. The
Lower Chamber was called 'House of Assembly'. The Upper Chamber was called 'Council of
States'. Under the Government of India Act, 1935, the Council of States was a permanent body
with one-third of its members retiring every third year. Sixth Schedule to the GI Act made
provisions for franchise. Part I of that Schedule contained qualifications. It did not include
residence as a qualification of the elector. However, there were other parts to the Sixth Schedule
which dealt with certain subjects exclusive for different provinces in which there was a
requirement of residence. This was under the heading 'general requirements. However, there was
no uniformity. In certain cases, residence was prescribed as a qualification (for example in the
case of Central Provinces, Berar and Bengal) whereas in provinces, namely, Assam, the
9 The Constitution of India, 1950
10 Rule XI of 1919 Electoral Rules

qualification was 'a family dwelling place or a place where the elector ordinarily resided'.
Therefore, the qualification of residence was not uniform. It depended upon local conditions. It
deferred from province to province.

At this stage, we may clarify that under strict federalism, the Lower House represents 'the people'
and the Upper House consists of the 'Union' of the Federation. In strict federalism both the
Chambers had equal legislative and financial powers. However, in the Indian context, strict
federalism was not adopted.

The Council of State under the GI Act became Council of States under the Constitution of India.
This fact is important. In this connection, we have to look into the minutes of the Union
Constitution Committee which recorded vide Item 21 the manner of computing weight
proportional representation based on population strength. The said minutes further show the
recommendation that the Upper House should include scientists, teachers etc. for which purpose,
the President should be given authority to nominate. The necessity of the Upper Chamber was
also the subject matter of debate in the Constituent Assembly on 28th July, 1947. These debates
indicate the purpose for having the Upper Chamber. The object of the Upper Chamber as
envisaged was to hold dignified debates on important issues and to share the experience of
seasoned persons who were expected to participate in the debate with an amount of learning.
Finally, on 28th July, 1947, a policy decision was taken by the Constituent Assembly that the
Federal Parliament shall consist of two chambers.

In the first draft Constitution, Fourth Schedule related to the composition of the Federal
Parliament. Paragraph 1 of Part I of the Fourth Schedule dealt with the general qualifications for
the members which included citizenship and minimum age of not less than 35 years in the case
of a seat in the Council of States. The said paragraph further stated that apart from citizenship
and age qualifications, it would be open to the Parliament to describe any other qualification as
may be appropriate. Paragraph 6 of Part I of the Fourth Schedule appended to the first draft

Constitution provided for the qualification of residence in a State for a candidate to be chosen to
the Council of States. Clause 60 of the first draft Constitution stated that all matters relating to or
connected with elections to either House of the Federal Parliament shall be regulated by the
Fourth Schedule, unless otherwise provided by the Act of the Federal Parliament. (Emphasis
supplied). However, the Fourth Schedule was omitted by the Drafting Committee. This was on
11th February, 1948. Therefore, with this deletion, the requirement of residence was done away
with.

CONTENTION 1.2.2: THE TERM REPRESENTATIVE OF EACH STATE IN CLAUSE 4 OF ARTICLE

80 OF THE CONSTITUTION OF INDIA DOES NOT IMPLY ORDINARY CITIZEN OR ELECTOR

Article 80(4) prescribes the manner of voting and election of the representatives of States for the
Council of States. In the instant case, the impugned amendment provides for the qualification of
the representatives and not the representation of states. The representation of state is not
affected. The no. of members from the State or Union territory remains same.

The word each in Article 80(4) had no significance in relation to representation of state. It was
mentioned in the clause (4) just to specify that there should be separate Electoral College for a
member of State specified in the Fourth Schedule. If the word had significance in relation to
representation of the state, then it would have been mentioned also is clause (5) in context of
Union territories.

The Petitioner would contend that there is a need of nexus between the representative and the
State, and by removing the requirement of domicile as a qualification to represent the State in the
Council of States. The representative is a person chosen by the electors, who in the opinion of the
electors is fit to represent, which ultimately provides for the nexus.

A member of Council of States representing a particular state is elected by the members of State
Legislative Assembly of that State. Section 6 of the amended Act still has requirement of
domicile to be a member of State Legislative Assembly. These members are in best position to
elect a representative of the State in the Council of States whether that representative be a
resident of the State or not.

The concept of ordinarily residence can be understood by the Section 20 11. As per the section,
the term refers to a person who owns, or is in possession of, a dwelling house therein. It can be
understood that ordinarily resident cannot establish the required nexus. The concept of
residence is not fixed and keeps changing with time and also no other provision defines it.

Article 84(c) provides that Parliament can make any other qualifications other than those
mentioned in sub-article (a) and (b). If the Parliament in its wisdom has chosen to do away with
the domiciliary requirement as qualification for contesting an election to fill a seat as
representative of a particular State in the Council of States, fault cannot be found with such
decision of the Parliament on the ground that difficulty to define what was meant by the
expression "ordinarily resident" was not an honest ground.
There is nothing in the Constitution or the law at any point of time rendering the domiciliary
requirement as crucial qualification for purposes particularly of the Council of States.

11 Representations of the People Act, 1950.

CONTENTION 2: SECRECY OF VOTING

Section 59 of the Representation of People Act, 1951 prescribes the manner of voting. Prior to
the impugned amendment, there was a system of secret voting. But after the Amendment Act 40
of 2003, voting for the Council of States is done through open ballot system. The impugned
amendment is constitutional and neither has it violated freedom of expression nor affect free and
fair elections.

CONTENTION 2.1: THE SECRECY OF VOTING AFFECTS PURITY OF ELECTION

The amendment in the instant case is brought with the object of purity in the election process.
As per Section 123(1)12, bribery is an electoral offence and a corrupt practice. This provision
has been made with the manifest object of ensuring purity of the election process. It may be apt
to point out that purity of elections at elections to the Rajya Sabha has been given a prime place
in the scheme of our elections to Parliament, whereby even the secrecy of votes has yielded to
the principle of purity of election by making the polling process at the elections to the Rajya
Sabha an open exercise. Under Rule 39AA of the Conduct of Elections Rules, 1961, at the time
of the poll at elections to the Rajya Sabha, every elector (MLA) belonging to a political party has
to show his marked ballot paper to the authorized representative of his party before inserting it
into the ballot box and any refusal on his part to show his marked ballot paper to his party
representative would render his ballot paper liable to rejection.

12 The Representation of People Act, 1951.

This amendment was made to ensure purity of the elections. Earlier, the same principle was
stressed by the Hon'ble Supreme Court, whereby the Supreme Court had held that Secrecy of
ballot, though undoubtedly, the vital principle for ensuring free and fair elections, it was
enshrined in law to sub-serve the larger public interest, namely, purity of election for ensuring
free and fair election. They can co-exist but where one is used to destroy the other, the first one
must yield to the principle of purity of election inlarger public interest.13

CONTENTION 2.1: THE IMPUGNED AMENDMENT DOES NOT INFRINGE FREEDOM OF

EXPRESSION UNDER ARTICLE 19 OF THE INDIAN CONSTITUTION

Article 19 confers several freedoms on the citizens. It protects the six freedoms of an Indian
citizen from state action.14 Freedom of speech is one of these six freedoms. It is the bulwark of
democratic government. This freedom is essential for the proper functioning of the democratic
process.15 Voting at an election is also a form of expression.16 There should be free and fair
elections but secret ballot is not an inflexible or mandatory procedure for free and fair elections.
Open ballot system does not defeat the concept of free and fair elections. 17 Similar rule was
established in the Australian judgment in R. v. Jones18. 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,
13 Raghbir Singh Gill Vs. Gurcharan Singh Tohra, AIR 1980 SC 1362
14 Shamdasani v. Central Bank of India, AIR 1952 SC 59
15 M.P jain , The Indian Constitution (7th edition, 2014) pg 1019
16 Peoples Union of Civil Liberties v. Union of India, AIR 2003 S 2363
17 United Democratic Movement v. President of the Republic of South Africa
18

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. In the case of direct elections,
members are chosen directly by popular vote which is not the case under indirect elections.
Therefore, it cannot be said that the concept of open ballot would defeat the attainment of free
and fair elections.19

There is a fine distinction drawn between right to vote and freedom of voting. In case of Jyoti
Basu v. Debi Goshal20 it is viewed that right to elect, fundamental though is to democracy, is
neither a fundamental right nor a common law right, but pure and simple, a statutory right. Even
otherwise, there is no basis to contend that the right to vote and elect representatives of the State
in the Council of States is a Constitutional right. Article 80 (4) merely deals with the manner of
election of the representatives in the Council of States as an aspect of the composition of the
Council of States. There is nothing in the Constitutional provisions declaring the right to vote in
such election as an absolute right under the Constitution.

Hence, it can be inferred that open ballot system does not violate Article 19 and hence the
impugned amendment is not unconstitutional.

CONTENTION 2.3: THE FUNCTION OF MEMBERS OF LEGISLATIVE ASSEMBLY TO

VOTE FOR ELECTIONS OF THE COUNCIL OF STATES IS NOT UNDER THE PURVIEW
OF ARTICLE 194.

Article 194 (2) prescribes the privileges of the Members of the Legislative Assemblies of the
States who constitute State wise electoral colleges for electing representatives of each State in
the Council of States under the provisions of Article 80 (4). The freedom of expression without
19 B.R. Patil S/O Ramachandrappa vs Rajeev Chandrashekar, Major And Ors., ILR 2007 KAR 317
20 (1982) 1 SCC 691

fear of legal consequences as flowing from Article 194(2) should inure to the Members of the
Legislative Assemblies while discharging their function as Electoral College under Article 80(4).
But the proceedings concerning election under Article 80 are not proceedings of the "House of
the Legislature of State" within the meaning of Article 194. It is the elected members of the
Legislative Assembly who constitute, under Article 80 the Electoral College for electing the
representative of the State to fill the seat allocated to that State in the Council of States. It is
noteworthy that it is not the entire Legislative Assembly that becomes the Electoral College, but
only the specified category of members thereof. When such members assemble at a place, they
do so not to discharge functions assigned under the Constitution to the Legislative Assembly.
Their participation in the election is only on account of their ex-officio capacity of voters for the
election. Thus, the act of casting votes by each of them, which also need not occur with all of
them

PRAYER FOR RELIEF

Therefore in the light of facts of the case, issues raised, arguments advanced and authorities cited,

this Court may be pleased to adjudge and declare that:

1
2

All of which is respectfully submitted.

Place: New Delhi

Alisha Fatima Khan

Date: 02.09.2014

(Counsel for the Respondent)