Legal Correspondent

Amendments on domicile requirement and open ballot challenged

Very basis of free election "violated" Qualifications do not impinge on federalism: Centre

New Delhi: A five-judge Constitution Bench of the Supreme Court will hear in the last week of February an application filed by the former Rajya Sabha member, Kuldip Nayar, seeking a direction to the Election Commission not to issue a notification for polls to fill 60 vacancies due to arise in the House till April. Senior counsel Fali Nariman mentioned the application before a Bench consisting of Chief Justice Y.K. Sabharwal and Justice C.K. Thakker. It was filed on a pending writ petition, challenging amendments made to the Representation of the People Act dispensing with the domicile requirement and introducing the open ballot system.

Mr. Nariman pleaded for early hearing of Mr. Nayar's petition, pending since April 2004 and referred to a larger Bench as it involved important constitutional questions.

(The court already made it clear that the elections held during 2004 and 2005 would be subject to its final orders.)

Mr. Nariman said that by taking away secrecy, the very basis of free and fair elections and voter's freedom of expression under Article 19(1)(a) was violated.


Mr. Nayar said federalism was part of the "basic structure" of the Constitution. The amendment to the RP Act made in August 2003, being contrary to the basic structure, was unconstitutional and liable to be struck down. Article 84 (c) dealt with the qualification for Parliament membership either prescribed in that behalf or stipulated under any law made by Parliament. Accordingly, under the Act a candidate for should ordinarily be a resident of the State concerned for being elected to the Council of States.

Justifying the amendments, the Centre said the amended Act did not in any way violate the basic structure of the Constitution. The qualifications did not impinge on federalism because the representation of a State or territory was still undertaken on a vote cast by the Electoral College consisting of elected representatives.