The Supreme Court on Tuesday dismissed the writ petition challenging the amendment to section 3 of the Representation of People Act, 1951, doing away with the requirement of domicile in the state concerned for getting elected to the Rajya Sabha and also introducing open ballot in place of secret ballot.
A five-judge Constitution bench headed by Chief Justice Y K Sabharwal dismissed a bunch of petitions filed by eminent journalist Kuldip Nayar and former parliamentarian Inderjeet, stating: "The impugned amendment cannot be assailed as unconstitutional. Thus the validity of the law that was changed after more than half a century has been upheld by the court."
The bench, which also comprises of Justices K G Balakrishnan, S H Kapadia, C K Thakker and P K Balasubrahmanyan, said: "The arguements raised by the petitioners hold no water and are, therefore, liable to be repelled. It does not transgress the basic structure of the Constitution of India, challenge thus must be repelled. Residence is not a constitutional requirement, it is only a qualification."
In its 317-page judgment, the court further held that as long as the state has a right to be represented in the council of states by its chosen representative, who is a citizen of the country, it cannot be said that federalism is affected.
"There is no requirement in law that the person elected must possess the same qualifications as the elector possesses and so there is no merit in the plea that the representative of the state elected by the legislative assembly of the state must also be an ordinary resident of the state just because the electorate that is electing him are required by law to be so," the bench said.
Rejecting the contention that the amendments made to Sections 59, 94 and 128 of the Representation of the People Act, to introduce open ballot in place of secret ballot, run counter to the principles of democracy based on free and fair elections, the court said, "It cannot be said that the concept of open ballot would defeat the attainment of free and fair election."
The court said the contention that the right of expression of a voter in an election for the Council of States was affected by open ballot was 'not tenable,' as an elected legislator cannot face any disqualification from the membership of the assembly for voting in a particular manner and he may, at the most, attract action from the political party to which he belongs.
"The Constitution does not provide that voting for an election to the council of states shall be by secret ballot and the manner of voting in the election to the council of states can be regulated by the statute," the bench said.
The court said that since the amendments have been brought in to avoid cross-voting, to wipe out the evil of corruption and to maintain the integrity of the democratic set-up, they can 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.
Observing that secrecy of ballot was a vital principle for ensuring free and fair polls, the court said, "If secrecy becomes a source of corruption then sunlight and transparency have the capacity to remove it. We can only say that the legislation pursuant to a legislative policy that transparency will eliminate the evil that has crept in will hopefully serve the larger object of free and fair elections."
The judgment will grant relief to several parliamentarians, including the prime minister who was elected to the Upper House of Parliament from Assam, which is not his state of domicile.