New Delhi: A Constitution Bench of the Supreme Court on Tuesday upheld the Constitutional validity of an amendment to the Representation of the People Act, dispensing with the domicile requirement for getting elected to the Rajya Sabha.

Prior to the amendment, a candidate had to be a voter in the State from where he was to be elected. This requirement was dispensed with through the amendment in August 2003.

The five-judge Bench, headed by Chief Justice Y.K. Sabharwal, in its 317-page unanimous judgment also upheld another amendment, introducing open ballot, instead of secret ballot, for elections to the House.

The Bench, which included Justices K.G. Balakrishnan, S.H. Kapadia, C.K. Thakker and P.K. Balasubramanyan, dismissed a batch of petitions filed by the former Rajya Sabha member, Kuldip Nayar, and others, questioning the legality of these amendments.

The Bench pointed out that the Rajya Sabha's role was somewhat secondary to that of the Lok Sabha. It said: "[The] Rajya Sabha is a forum to which experienced public figures get access [to] without going through the din and bustle of a general election, which is inevitable in the case of [the] Lok Sabha."

Not territory-related

On the petitioners' contention that the amendments violated the concept of federalism in the democratic set-up, the Bench said the principle was not territory-related. Further, "residence or domicile is not the essential ingredient of the structure and the composition of the Upper House, and that the residence is neither a constant factor nor a constitutional requirement, but a matter of qualification prescribed by Parliament in exercise of its power under Article 84 of the Constitution, and so the question of violation of basic structure does not arise."

The judges said: "There is no requirement in law that the person elected must possess the same qualifications as the elector; and so there is no merit in the plea that the representative of the State elected by the Legislative Assembly must also be an ordinary resident just because the electorate that is electing him is required by law to be so."

As long as the State had a right to be represented in the Council of States by its chosen representatives, it could not be said that federalism was affected.

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