The Telegraph
Since 1st March, 1999
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Domicile not key to RS: Court

New Delhi, Aug. 22: The Supreme Court today ruled that doing away with the requirement of “residence or domicile” for being elected to the Rajya Sabha from any state did not affect the federal polity because the Council of States “does not act as a champion of local interests”.

A five-judge Constitution bench, in its 317-page judgment, also upheld the amendment to introduce “open ballot” for elections to the upper House on the ground that “secret ballot” could be done away with in case of indirect elections.

Dismissing PILs by former Rajya Sabha member Kuldip Nayar and others who had challenged amendments to the Representation of Peoples Act, the court said residence or domicile are not essential to the structure and composition of the upper House and that secret ballot can be insisted on only in direct elections.

The unanimous verdict of the bench headed by Chief Justice Y.K. Sabharwal comes as a relief to several new Rajya Sabha members whose elections were subject to the outcome of the petitions against the amendments that came into force in August 2003.

On the contention that the amendments to the 1951 act upset the basic principle of federalism by disturbing the balance of power between the Centre and the states, the court said “the principle of federalism is not territory-related”.

“Although the Rajya Sabha is designed to serve as a chamber where the states and the Union of India are represented, in practice, the Rajya Sabha does not act as a champion of local interests,” the court said, pointing out that members vote according to their party affiliation.

There was no merit in the plea that a representative who did not belong to a state could not effectively represent it, the court said. As long as states had a right to be represented in the Rajya Sabha by their chosen representatives, it could not be said that federalism was affected.

The Constitution, after prescribing certain qualifications and disqualifications, had left it to Parliament to provide “other” qualifications to be fulfilled by persons seeking to fill the Council of States, the court pointed out.

Even after the amendment scrapping the domicile requirement, the electors remained the same, elected persons remained representatives of the state and the choice remained with the state legislative Assemblies, the court said.

As for the amendment bringing in open ballot, the court observed that “the submission that a right to vote invariably carries an implied term — the right to vote in secrecy — is not wholly correct.”

The Constitution had specifically provided for “secret” voting for the election of President and Vice-President and left it to Parliament to decide on elections to the Rajya Sabha, it said.

On true expression being influenced by whips, the apex court said parliamentary democracy in our country could not do without political parties and open ballot helps protect party discipline.

Pointing out that the open ballot system was introduced to “wipe out evils of corruption as also to maintain the integrity of our democratic set-up”, the court said: “If secrecy becomes a source of corruption, then sunlight and transparency have the capacity to remove it.”

Dismissing the PILs, the court said the right to elect was neither a fundamental right nor a common law right but a statutory right which could be regulated by Parliament.

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