The Representation of People Act, 1951 is an act of Parliament of India to provide for the

conduct of elections of the Houses of Parliament and to the House or Houses of the Legislature

of each State, the qualifications and disqualifications for membership of those Houses, the

corrupt practices and other offences at or in connection with such elections and the decision of

doubts and disputes arising out of or in connection with such elections. The Act was enacted by

the provisional parliament under Article 327 of Indian Constitution, before the first general

election.[1] The acts were amended several times, but one of the notable amendments is the

Representation of the People (Amendment) Act, 1966 (47 of 1966), which abolished the election

tribunals and transferred the election petitions to the high courts whose orders can be appealed to

Supreme Court. However, election disputes regarding the election of President and Vice-

President are directly heard by the Supreme Court.

Facts and Main Issue

FACTS :

The Representation of People (Amendment) Act, 2003 amended Section 3 of the Representation

of People Act 1951 by substituting the words “in India” in the place of “in that State or

territory”.

SEC 3 of RPI act, 1951, as originally enacted read as under:

Qualification for membership of the Council of States. – (1) A person shall not be qualified to be

chosen as a representative of any Part A or Part B State (other than the State of Jammu and

Kashmir) in the Council of States unless he is an elector for a Parliamentary constituency in that

State.

SEC 3 of RPI act, after the abovementioned amendment read as under:

Qualification for membership of 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.

Thereby, the amendment dispensed with the requirement that the State from where a candidate

sought election to the Upper House was his or her domicile i.e. the domicile requirement for

getting elected to the Council of States is deleted. Kuldip Nayar, in his petition, challenged the

amendment saying that it affected the federal structure of the Constitution.

MAIN ISSUE OF THE CASE

Two issues arise for determination in this case. The first issue relates to the content and the

significance of the word "domicile" whereas the second issue deals with importance of the

concept of "secrecy" in voting under the constitutional scheme.

Text of the statute before the amending Act 40 of 2003

From 1951 up to 2003, Sections 3, 59, 94 and 128, as originally stood, were as follows:

"3. Qualification for membership of 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 that State or territory.

59. 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 and no votes shall be received by proxy.

94. Secrecy of voting not to be infringed.— No witness or other person shall be required to state

for whom he has voted at an election.

128. 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.

(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."

By the Representation of the People (Amendment) Act, 2003 (Act 40 of 2003), in Section 3 for

the words "in that State or territory", the words "in India" were substituted.

In Sections 59, 94 and 128, the following provisos were inserted at the end:

"[59.] Provided that the votes at every election to fill a seat or seats in the Council of States shall

be given by open ballot.

[94.] Provided that this section shall not apply to such witness or other person where he has

voted by open ballot.

[128.] 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."

History of the RP Acts, 1950 and 1951

In the year 1952, Parliament came to be duly constituted and summoned to meet for the first

session under the provisions of the Constitution. Till then, the Constituent Assembly, which had

prepared and adopted the Constitution, functioned as the Provisional Parliament, in accordance

with the provision contained in Article 379. It may be added here that after the first general

elections had led to the two Houses of Parliament being constituted, Article 379, having served

its purpose, was deleted by the Constitution (Seventh Amendment) Act, 1956 with effect from 1-

11¬1956.

The Provisional Parliament, in exercise of its authority under Article 379 read with the

aforementioned enabling provisions, enacted a law called the "Representation of the People Act,

1950" (the RP Act, 1950), which came into force with effect from 12-5-1950. This law had been

enacted to provide for, "the allocation of seats in, and the delimitation of constituencies for the

purpose of elections to, the House of the People and the legislatures of States, the qualifications

of voters at such elections, the preparation of electoral rolls, and matters connected therewith".

It must be mentioned here that the subject-matter relating to "the manner of filling seats in the

Council of States to be filled by representatives of Part C States" (later "Union Territories") was

inserted in this law by way of Act 73 of 1950 [to be read with the Adaptation of Laws (No. 2)

Order, 1956] which, among others, added Part IV-A to the RP Act, 1950. 16. The RP Act,

1950 did not contain all the provisions relating to elections. Provisions for the actual conduct of

elections, amongst others, to the Houses of Parliament, the qualifications for the membership of

such Houses, etc. had been left to be made in subsequent measures. In order to make provisions

for such other subjects, the Provisional Parliament, in exercise of its authority under Article 379

read with the aforementioned enabling provisions, enacted the RP Act, 1951, which was brought

into force with effect from 17-7-1951. Chapter I of Part II of the RP Act, 1951 related to

"Qualifications for membership of Parliament". It includes two sections, namely, Sections 3 and

4. We are not much concerned with Section 4 inasmuch as it pertains to qualifications for

membership of the House of the People. Section 3 of the RP Act, 1951, in its original form is the

main bone of contention here. Section 3 of the RP Act, 1951, as originally enacted, read as

under:

"3. Qualifications for membership of the Council of States. — (1) A person shall not be qualified

to be chosen as a representative of any Part A or Part B State (other than the State of Jammu and

Kashmir) in the Council of States unless he is an elector for a parliamentary constituency in that

State.

(2) A person shall not be qualified to be chosen as a representative of the States of Ajmer

and Coorg or of the States of Manipur and Tripura in the Council of States unless he is an elector

for any parliamentary constituency in the State in which the election of such representative is to

be held.

(3) Save as otherwise provided in sub-section (2), a person shall not be qualified to be

chosen as a representative of any Part C State or group of such States in the Council of States

unless he is an elector for a parliamentary constituency in that State or in any of the States in that

group, as the case may be." Section 3 of the RP Act, 1951 was substituted by the following

provision through the Adaptation of Laws (No. 2) Order, 1956 and thus came to read as under:

"3. Qualification for membership of the Council of States.— A person shall not be qualified to

be chosen as a representative of any State (other than the State of Jammu and Kashmir) or Union

Territory in the Council of States unless he is an elector for a parliamentary constituency in that

State or territory."

The above provision underwent a further change, with effect from 14-12-1966 as a result of Act

47 of 1966, which made it applicable to all the States and Union Territories of India by omitting

the words "other than the State of Jammu and Kashmir".

Act 40 of 2003 has amended the provision, with effect from 28-8-2003 so as to substitute the

words "in that State or territory" with the words "in India". The amended provision reads as

under: "3. Qualification for membership of 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."

Content and the significance of the word "domicile"

The effect of the amendment to Section 3 of the RP Act, 1951 brought about by Act 40 of 2003

thus, is that a person offering his candidature for election to fill a seat in the Council of States is

now required to be simpliciter "an elector for a parliamentary constituency in India"; that is to

say, he is no longer required to be an elector for a parliamentary constituency in the "State or

Territory" to which the seat for which he is a candidate pertains.

The word "elector" has been defined in Section 2(e) of the RP Act, 1951 which reads as under:

"2. (e) 'elector' in relation to a constituency means a person whose name is entered in the

electoral roll of that constituency for the time being in force and who is not subject to any of the

disqualifications mentioned in Section 16 of the Representation of the People Act, 1950 (43 of

1950);"

Section 16 of the RP Act, 1950 which has been referred to in the abovequoted definition of the word "elector" reads as under:

"16. Disqualifications for registration in an electoral roll.-(l) A person shall be disqualified for registration in an electoral roll if he—

(a) is not a citizen of India; or

(b) is of unsound mind and stands so declared by a competent court; or

(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections.

(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included:

Provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification under clause (c) of sub-section (1) shall forthwith be reinstated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorising such removal."

Section 19 of the RP Act, 1950 relates to the "Conditions of registration". It provides as under:

"19. Conditions of registration.— Subject to the foregoing provisions of this Part, every person who—

(a) is not less than eighteen years of age on the qualifying date, and

(b) is ordinarily resident in a constituency,

shall be entitled to be registered in the electoral roll for that constituency."

The expression "ordinarily resident" as appearing in Section 19(b) has been explained in Section 20 of the RP Act, 1950, which may also be extracted, inasmuch as it is of great import in these matters. It reads as under:

"20. Meaning of 'ordinarily resident'. — (1) A person shall not be deemed to be ordinarily resident in a constituency on the ground only that he owns, or is in possession of, a dwelling house therein.

(1-A) A person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein.

(1-B) A Member of Parliament or of the legislature of a State shall not during the term of his office cease to be ordinarily resident in the constituency in the electoral roll of which he is registered as an elector at the time of his election as such member, by reason of his absence from that constituency in connection with his duties as such member.

(2) A person who is a patient in any establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or mental defectiveness, or who is detained in prison or other legal custody at any place, shall not by reason thereof be deemed to be ordinarily resident therein.

(3) Any person having a service qualification shall be deemed to be ordinarily resident on any date in the constituency in which, but for his having such service qualification, he would have been ordinarily resident on that date.

(4) Any person holding any office in India declared by the President in consultation with the Election Commission to be an office to which the provisions of this sub-section apolv shall be deemed to be ordinarily resident on anv date in the constituency in which, but for the holding of any such office, he would have been ordinarily resident on that date.

(5) The statement of any such person as is referred to in sub-section (3) or sub -section (4) made in the prescribed form and verified in the prescribed manner, that but for his having the service qualification or but for his holding any such office as is referred to in sub-section (4) he would have been ordinarily resident in a specified place on any date, shall, in the absence of evidence to the contrary, be accepted as correct.

(6) The wife of any such person as is referred to in sub-section (3) or sub¬section (4) shall, if she be ordinarily residing with such person during any period, be deemed to be ordinarily resident during that period in the constituency specified by such person under sub-section (5).

(7) If in any case a question arises as to where a person is ordinarily resident at any relevant time, the question shall be determined with reference to all the facts of the case and to such rules as may be made in this behalf by the Central Government in consultation with the Election Commission.

(8) In sub-sections (3) and (5) 'service qualification' means—

(a) being a member of the armed forces of the Union; or

(b) being a member of a force to which the provisions of the Army Act, 1950 (46 of 1950), have been made applicable whether with or without modifications; or

(c) being a member of an armed police force of a State, who is serving outside that State; or

(d) being a person who is employed under the Government of India, in a post outside India."

All the above provisions of law have to be read together and the conjoint effect thereof is that a person in order to qualify to be registered as an elector in relation to a constituency, besides fulfilling other qualifications, must be a citizen of India, not less than 18 years of age on the qualifying date (which by virtue of Section 14 of the RP Act, 1950 means the first day of January of the year in which the electoral list of the constituency is prepared or revised), and, what is significant here, be "ordinarily resident" in that constituency. As a result of the impugned amendment to Section 3 of the RP Act, 1951 it is no longer required that the candidate for an election to fill a seat in the Council of States be "ordinarily resident" of the State to which that seat pertains.

The above amendment, which can be loosely described as an amendment doing away with the requirement of domicile, has been challenged as unconstitutional in the writ petitions at hand.