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Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.

Kuldip Nayar vs.  Union of India

AIR2006SC3127, (2006)7SCC1, [2006]Supp(5)SCR1

Hon’ble Judges/Coram: Y.K. Sabharwal, C.J., K.G. Balakrishnan, S.H. Kapadia, C.K. Thakker and P.K. Balasubramanyan, JJ.

Date of Judgment: 22.08.2006


By this writ petition under Article 32 of the Constitution of India, petitioner seeks to challenge amendments made in the Representation of People Act, 1951 (for short, ‘the RP Act’, 1951′) which came into force from 28th August, 2003. By the said Amendment Act 40 of 2003, the requirement of “domicile” in the State Concerned for getting elected to the Council of States is deleted which according to the petitioner violates the principle of Federalism, a basic structure of the Constitution.


  1. Question in this case relates to the content and the significance of the word ‘domicile’, and essence of the basic structure of Federalism.


In order to deal with the first issue which revolves around deletion of word ‘domicile’ from the RP Act, Court said that the effect of the amendment to Section 3 of 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 Court referred to certain other provisions of the RP Act, 1950 and RP Act, 1951 and said 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 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 “ordinary 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.

It is provided in Article 80(2) that allocation of seats in the Council of States to be filled by the representatives of States and the Union Territories shall be in accordance with the provisions in that behalf contained in the Fourth Schedule. In Article 80(4), it is provided that the representatives of each State shall be elected by the elected Members of the Legislative Assemblies of the States in accordance with the system of proportional representation by means of a single transferable vote. Apart from this, the Constitution does not put any restriction on the legislative powers of the Parliament in this regard. The amendments in Sections 3, 59, 94 and 128 of the Representation of the People Act, 1951 by the Representation of the People (Amendment) Act, 2003 (40 of 2003) has been made in exercise of the powers conferred on the Parliament under Article 246 read with Articles 84 and 327 and Entry 72 of the Union List of the Seventh Schedule to the Constitution.

In this regard, it is ruled that in India, under Article 83(1), the Rajya Sabha is a permanent body with members being elected for 6 year terms and 1/3rd of the members retiring every 2 years. These ‘staggered terms’ also lead to a consequence where the membership of the Rajya Sabha may not reflect the political equations present in the Lok Sabha at the same time. The Rajya Sabha cannot be dissolved and the qualifications for its membership are citizenship of India and an age requisite of 30 years [Article 84].

Article 80 of the Constitution of India prescribes the composition of the Rajya Sabha. The maximum strength of the house is 250 members, out of which up to 238 members are the elected representatives of the states and the Union territories [Article 80(1)(b)], and 12 members are nominated by the President as representatives of non-political fields like literature, science, art and social services [Articles 80(1)(a) and 80(3)]. The members from the states are elected by the elected members of the respective State legislative assemblies as per the system of Proportional representation by means of the single transferable vote [Article 80(4)]. However, it is no part of Federal principle that the representatives of the States must belong to that State. There is no such principle discernible as an essential attribute of Federalism, even in the various examples of upper chamber in other countries. The various constitutions of other countries show that residence, in the matter of qualifications, becomes a constitutional requirement only if it is so expressly stated in the Constitution. Residence is not the essence of the structure of the Upper House. The Upper House will not collapse if residence as an element is removed. Therefore, it is not a prerequisite of federalism.

It can be safely said that as long as the State has a right to be represented in the Council of States by its chosen representatives, who are citizens of the country, it cannot be said that federalism is affected. It cannot be said that residential requirement for membership to the Upper House is an essential basic feature of all Federal Constitutions. Hence, if the Indian Parliament, in its wisdom has chosen not to require residential qualification, it would definitely not violate the basic feature of Federalism. Our Constitution does not cease to be a federal constitution simply because a Rajya Sabha Member does not “ordinarily reside” in the State from which he is elected.

That apart, the nature of Federalism in Indian Constitution is no longer res integra. There can be no quarrel with the proposition that Indian model is broadly based on federal form of governance with a tilt towards the center. Under strict federalism, the Lower House represents ‘the people’ and the Upper House consists of the ‘Union’ of the Federation. In strict federalism both the Chambers had equal legislative and financial powers. However, in the Indian context, strict federalism was not adopted.

The federal principle is dominant in our Constitution and that principle is one of its basic features, but, it is also equally true that federalism under Indian Constitution leans in favour of a strong center, a feature that militates against the concept of strong federalism. The Constitution incorporates the concept of federalism in various provisions. The provisions which establish the essence of federalism i.e. having States and a center, with a division of functions between them with sanction of the Constitution include, among others, Lists II and III of Seventh Schedule that give plenary powers to the State Legislatures; the power of the Union to deal with extraordinary situations such as during the emergency (Article 250, 252, 253) and in the event of a proclamation being issued under Article 356 that the governance of a State cannot be carried on in accordance with the provisions of the Constitution; the power of the Parliament to legislate with respect to a matter in the State List in the national interest in case there is a resolution of the Council of States supported by prescribed majority (Article 249); the power of the Parliament to provide for creation and regulation of All India Services common to Union and the States in case there is a Resolution of the Council of States supported by not less than two-third majority (Article 312); there is only one citizenship namely the citizenship of India; and, perhaps most important, the power of the Parliament in relation to the formation of new States and alteration of areas, boundaries or names of States (Article 3).


The impugned amendment does not infringe any Constitutional provision. It cannot be found to be violative of fundamental rights in Part III of the Constitution. The Parliament has legislative competence to enact the amending Act. Moreover, principle of Federalism is not territory related, and though, federalism forms the basic structure of Constitution, India is not a federal State in the traditional sense of the term.

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