P.K. Balasubramanyan JUDGMENT
Y.K. Sabharwal, C.J.
Background
1. 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') through Representation of People (Amendment) Act 40 of 2003 which came into force from 28th August, 2003. By the said Amendment Act 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.
In the writ petition, there is a further challenge to the amendments in Sections 59, 94 and 128 of the RP Act, 1951 by which Open Ballet System is introduced which, according to the petitioner, violates the principle of 'secrecy' which, according to the petitioner, is the essence of free and fair elections as also the voter's freedom of expression which is the basic feature of the Constitution and the subject matter of the fundamental right under Article 19(1)(a) of the Constitution.
Text of the Statute before the Amending Act 40 of 2003
2. From 1951 upto 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 persons 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 any election shall not (except for some purposes authorized 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........