LOK PRAHARI Vs. UNION OF INDIA

JUDGEMENT

(1.) The jurisdiction of this Court under Article 32 of the Constitution has been invoked by Lok Prahari, a society registered under the Societies Registration Act 1860. The petitioner has been represented in these proceedings by Mr S N Shukla, who is the General Secretary. Two specific challenges have been set up to the vires of:

(2.) Article 80 of the Constitution provides for the composition of the Council of States. Article 80(1)(b) envisages that the Council of States shall consist of "not more than two hundred and thirty eight representative of the States and of the Union Territories". The allocation of seats in the Council of States to be filled by representatives of the States and Union Territories is in accordance with the provisions contained in the Fourth Schedule(clause (2) of Article 80). Clause (4) of Article 80 stipulates that the representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. As regards the Legislative Councils, Article 171(3)(d) stipulates that one-third of the members shall be elected by the members of the Legislative Assembly of the State from amongst persons who are not members of the Assembly.

(3.) According to the petitioner, for fifty years after the enactment of the 1951 Act, elections to both the Council of States and Legislative Councils were conducted by secret ballot. However, by Act 40 of 2003, Ss. 59, 94 and 128(1) of the 1951 Act were amended so as to provide for an open ballot system for elections to the Rajya Sabha. The proviso to Sec. 59 stipulates that the votes at every election to fill a seat or seats in the Council of States shall be given by open ballot. Sec. 94 which protects the secrecy of voting contains a proviso to the effect that the Sec. shall not apply to a situation where the voting is by open ballot. A similar provision has been made in the proviso to Sec. 128(1).