'Open Ballot System In Rajya Sabha Elections Necessitated To Prevent Cross-Voting' : Supreme Court Rejects Challenge To Election Rules

The Supreme Court on March 27 dismissed a PIL which challenged the open ballot system for Rajya Sabha elections. A bench comprising Chief Justice of India DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala was considering a petition filed by the NGO Lol Prahari challenging Rule 39AA of the Conduct of the Election Rules 1961.

As per Rule 33A, in Rajya Sabha elections, an elector, who is a member of a political party, has to allow the authorized agent of the political party to verify to whom the vote has been cast before the ballot paper is put inside the ballot box. If the elector refuses to show the ballot paper to the authorized agent, then it will result in the cancellation of the vote.

Advocate SN Shukla for the petitioner contended that Rule 39AA(1) was violative of Article 80(4) and Article 14 of the Indian Constitution and was also contrary to Section 123(2) of RPA.

Article 80(4) provides that representatives of each State 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. Further, Section 123(2) of RPA provides that undue influence by means of any direct or indirect interference with the free exercise of any electoral right shall be considered a corrupt practice. On basis of these Articles, the petitioner argued that  Rule 39AA(1) should be read down. The petitioner pointed out that for over 50 years since 1951, the voting to Rajya Sabha was done on the basis of secret ballot but in 2003, Rule 39AA was inserted through an amendment.

At the very outset, Additional Solicitor General of India KM Nataraj submitted before the bench that the question arising in the petition had already been dealt with in the judgement of Kuldip Nayar v. Union Of India (2006) 7 SCC 1. The bench agreed with the submission and noted that a Constitution bench in the Kuldip Nayar case had already held that an open ballot system did not mean it was open to one and all, but only to the authorised political party representative and the same was necessary to prevent cross voting. The bench stated–

"This aspect has been examined in Kuldip Nayar v. UOI in which the constitution bench held that after the amendment, voting to the council has undergone an enormous change where secret ballot is replaced by open ballot.The Court held that the underlying basis of the change in the norm, to an open ballot, was necessitated to prevent cross-voting and the flouting of party discipline".

The Constitution Bench held that in a general election, secrecy of voting is required to maintain the purity of the electoral system. A voter is entitled to exercise the right to vote in a free and fair manner without disclosing how he has voted. However, the concept of “constituency-based representation” in a general election is distinct from “proportional representation”. In a case of “proportional representation”, voters are subject to party discipline, The Constitution Bench held that it is legitimately open to prescribe the methodology of an open ballot for conducting elections to the Council of States.

Bench refuses to read down the rule

Shukla made an alternate prayer that the rule be read down. However, this was rejected by the bench.

"Mr Shukla insists that the rule should be read down but the manner in which he says rule should be re-interpreted is by postulating that in the event elector does not show ballot to presiding officer, the presiding officer should in turn show it to the authorized agent of the political party. Apart from the fact that this is not canvas of the plea, we do not see any merit in the submission. Irrespective of the fact that there is an alternate scheme, it does not make the rule unconstitutional. The cancellation of ballot where the elector refuses to disclose it to the agent of his political party, it would be far fetched to still sustain the vote by casting burden on the presiding officer."

Rejects challenge to the proviso to Section 33 of the 1951 Act

The second challenge in the petition was to the proviso to Section 33 of the Representation of Peoples Act 1951. The proviso stipulates that a candidate who is not set up by a recognized political party shall not be deemed to be duly nominated for election unless the nomination paper is subscribed by ten proposers who are electors of the constituency.

"This lies purely in the realm of legislative policy. There is nothing per se discriminatory in the provision. Parliament is entitled to regulate the manner in which nomination papers should be presented and the requirements for a valid nomination", the bench held while rejecting this challenge.

Accordingly, the petition was dismissed. 

Case Title: Lok Prahari v. UoI And Ors. WP(C) No. 1141/2020 PIL

Citation : 2023 LiveLaw (SC) 254

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