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Domicile not must for RS

india Updated: Aug 23, 2006 01:46 IST

THIS NEWS from the Supreme Court is bound to cheer up almost all political parties. A five-judge constitution bench headed by Chief Justice Y.K. Sabharwal on Tuesday upheld the constitutional validity of the amendments in electoral laws which did away with the domicile criterion and the secret ballot system in Rajya Sabha elections.

The verdict came on a bunch of PILs filed by journalist and former RS member Kuldip Nayar and three others, challenging the validity of the 2003 amendments to sections 3, 59, 94 and 128 of the Representation of People Act doing away with the domicile requirement and secret ballot.

The bench held that "the impugned amendments cannot be assailed as unconstitutional".

Over 50 Rajya Sabha MPs, whose election in violation of the domicile criterion was subject to the outcome of this case, heaved a sigh of relief after the judgment. It also vindicated the stand of both the UPA and NDA, which had joined hands to defend the amendments. 

Dismissing the petitioners' contention that doing away with the domicile requirement for candidates in RS elections was against the principle of federalism, a basic structure of the Constitution, the court held that "the principle of federalism is not territory-related".

The court said residence or domicile was not an essential ingredient of the basic structure and the composition of the Upper House. It was neither a constant factor nor a constitutional requirement but a matter of qualification prescribed by Parliament in exercise of its power under Article 84, the court ruled.

"As long as the state has a right to be represented in the Council of States by its chosen representatives, who are citizens of this country, it cannot be said that federalism is affected," it said.

The parity in the matter of qualification on the point of domicile of a candidate "does not make one House duplicate of the other, particularly as their role, functions, powers or prerogatives, especially in the matter of legislation, remain unchanged," it said.

The bench justified the end of secret ballot for Rajya Sabha polls, saying it would wipe out corruption and bring in transparency.

"The amendment has been brought in to avoid cross-voting and wipe out the evil of corruption as also to maintain the integrity of our democratic set-up," it said.

Observing that secrecy of ballot is a vital principle for ensuring free and fair elections, the bench said: "The higher principle, however, is free and fair elections and purity of elections. If secrecy becomes a source of corruption then sunlight and transparency have the capacity to remove it."

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 RS polls can be regulated by the statute.

The bench, which sought to emphasise the difference between Lok Sabha and Rajya Sabha elections, said, "It cannot be said that the concept of open ballot would defeat the attainment of free and fair elections (for the RS)."

Maintaining that the right to election was fundamental to democracy, the bench said it was neither a fundamental right or constitutional right nor a common law right, but a simple statutory right.

Terming political parties as essential for parliamentary democracy, the court wnet on to say: "The protection of party discipline can be introduced as an essential feature of the purity of elections in case of indirect  elections."