Global Freedom of Expression

Nayar v. Union of India

Closed Mixed Outcome

Key Details

  • Mode of Expression
    Non-verbal Expression
  • Date of Decision
    August 22, 2006
  • Outcome
    Law or Action Upheld
  • Case Number
    (2006) 7 SCC 1
  • Region & Country
    India, Asia and Asia Pacific
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Constitutional Law
  • Themes
    Access to Public Information, Political Expression, Privacy, Data Protection and Retention

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Case Analysis

Case Summary and Outcome

The present petitions were filed in order to challenge amendments made to the Representation of People Act, 1951. As per this Amendment, effective since 2003, an exception was carved out under the general rule of secret ballot for election of members of the Council of States. The petitioners averred that the right to vote in a secret ballot protects free speech and therefore, an open ballot is contrary to Article 19(1)(a) of the Indian Constitution. The Court, however, found no merit in this claim and dismissed it, upholding the Amendment as valid.


The Representation of People (Amendment) Act of 2003 amended certain provisions of the Representation of People Act, 1951 (“the Act”) which is legislation that governs the election of the parliamentary democracy of India. The section that concerns freedom of expression was that of open ballots.

The Act provided for secret ballots as a matter of right. The Amendment, in turn, stated that elections for the Council of States will be by open ballot. The Council of States is the Upper House of the Indian Parliament. While the Lower House is directly elected by the citizens, the Upper House comprises of representatives of the States in order to balance regional interests. This is a form of indirect election where the citizens vote for their respective State Legislatures, and elected members of State Legislatures, in turn, vote for their representatives to the Union Parliament. Therefore, the voting rights that this case is concerned with is that of elected members exercising the right to vote within the elected body.

The petitioners contended that the right to vote is a facet of freedom of expression, which is affected by the lack of secrecy. The Respondents averred that this was not a constitutionally recognized right and that open ballot was not against the interests of democracy. Further, it was necessary to bring transparency in parliamentary democracy and prevent cross-voting or voting against the interests of one’s own party for monetary considerations.

Decision Overview

The Court stated that the right to vote was a statutory rather than a constitutional right. The secret ballot was not constitutionally protected. The right to vote existed as a facet of freedom of expression, and not otherwise.

In this context, a distinction had to be drawn between direct and indirect elections. In their capacity as elected officials, the members of legislative assemblies represented the interests of the citizens and the party on the basis of which they received the elected seat. In such a case, they did not exercise an individual freedom of expression.

If such a freedom is presumed, the Court stated, there still was no proof of infringement. An elected representative would not lose his seat if he voted against the interests of the party he belonged to. In any case, such an interference may be justified on grounds of the right to freedom of information of voters.

Within the parliamentary process, elected representatives could not claim that the right to secrecy was essential to freedom of expression. In this capacity, their views were subject to the interests of transparency in a democracy.

Decision Direction

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Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Mixed Outcome

The Court rejected the petition and held that the right to a secret ballot could not be construed as a part of the freedom of expression of official representatives. While this appears to contract the freedom of expression of such representatives, it also expands freedom of information of citizens in general. The freedom of expression of an elected representative is therefore, restricted in his official capacity in so far as such expression does not enjoy the protection of secrecy. This ensures the necessary transparency in a parliamentary democracy.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related International and/or regional laws

  • UDHR, art. 21
  • ICCPR, art. 19
  • ICCPR, art. 25

National standards, law or jurisprudence

  • India, Const., art. 19(1)(a) & (2)
  • India, Union of India v. Association for Democratic Reforms, (2002) 3 S.C.R. 294
  • India, Pandey v. Union of India, (1993) 2 SCC 438
  • India, People's Union of Civil Liberties (PUCL) v. Union of India, (2003) 2 S.C.R. 1136
  • India, Thomas v. Speaker, Lok Sabha, (1993) 4 SCC 234
  • India, Chaudhuri v. State of Punjab, (2001) 7 SCC 126

Other national standards, law or jurisprudence

  • S. Afr., New National Party of South Africa v. Republic of South Africa, 1999 (3) SA 191

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

This case was decided by the Supreme Court and is binding on all lower courts. This case also acts as a precedent for future cases before the Supreme Court.

The decision was cited in:

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