Supreme Court Upholds Open Ballot System for Rajya Sabha Elections: Lok Prahari vs. Union of India (27 March 2023)

Date of the Judgment: 27 March 2023

Citation: Lok Prahari v. Union of India & Ors., Writ Petition (Civil) No 1141 of 2020

Judges: Dr Dhananjaya Y Chandrachud, CJI, Pamidighantam Sri Narasimha, J, J B Pardiwala, J.

Can the rules for Rajya Sabha elections require voters to show their ballot to a party representative, and can independent candidates be required to have ten proposers? The Supreme Court addressed these questions in a petition challenging the validity of certain election rules. The court upheld the open ballot system for Rajya Sabha elections, designed to prevent cross-voting, and the requirement for independent candidates to have ten proposers. The judgment was delivered by a three-judge bench comprising Chief Justice Dr. Dhananjaya Y Chandrachud, Justice Pamidighantam Sri Narasimha, and Justice J.B. Pardiwala, with the opinion authored by the Chief Justice.

Case Background

Lok Prahari, a registered society, filed a petition challenging the constitutional validity of Rule 39-AA of the Conduct of Election Rules, 1961 and the proviso to Section 33 of the Representation of the People Act, 1951. The petitioner argued that these provisions violate the principles of free and fair elections. The challenge was based on the premise that the open ballot system for Rajya Sabha elections and the requirement for independent candidates to have ten proposers are unconstitutional. The petitioner contended that the open ballot system forces voters to disclose their vote, thereby violating the secrecy of the ballot, and that the requirement for independent candidates to have ten proposers is discriminatory.

Timeline:

Legal Framework

The judgment discusses the following key legal provisions:

• Article 80 of the Constitution of India: This article outlines the composition of the Council of States (Rajya Sabha). Specifically, Article 80(1)(b) specifies the number of representatives from states and union territories, and Article 80(4) mandates that these representatives be elected by the elected members of the State Legislative Assemblies using proportional representation with a single transferable vote.
• Article 171(3)(d) of the Constitution of India: This provision deals with the composition of Legislative Councils, stating 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.
• Section 33 of the Representation of the People Act, 1951: This section deals with the presentation of nomination papers and requirements for a valid nomination. The proviso to Section 33 states that a candidate not set up by a recognized political party must have their nomination paper subscribed by ten proposers who are electors of the constituency. The court quoted the provision:
  
  “33. Presentation of nomination paper and requirements for a valid nomination.—
  (1)On or before the date appointed under clause (a) of
  section 30 each candidate shall, either in person or by his
  proposer, between the hours of eleven o’clock in the
  forenoon and three o’clock in the afternoon deliver to the
  returning officer at the place specified in this behalf in the
  notice issued under section 31 a nomination paper
  completed in the prescribed form and signed by the
  candidate and by an elector of the constituency as
  proposer:
  Provided that a candidate not set up by a recognised
  political party, shall not be deemed to be duly nominated
  for election from a constituency unless the nomination
  paper is subscribed by ten proposers being electors of
  the constituency.”
• Section 59 of the Representation of the People Act, 1951: This section deals with the method of voting at elections. The proviso to Section 59 stipulates that votes for elections to the Council of States shall be given by open ballot.
• Section 94 of the Representation of the People Act, 1951: This section protects the secrecy of voting, but the proviso states that it does not apply to open ballot situations.
• Section 128(1) of the Representation of the People Act, 1951: This provision also deals with maintaining secrecy of voting, with a similar proviso as Section 94 for open ballot.
• Rule 39-AA of the Conduct of Election Rules, 1961: This rule mandates that a member of a political party must allow the authorized agent of that party to verify their vote before inserting the ballot paper into the ballot box. If the voter refuses, the ballot paper is taken back and cancelled. The court quoted the provision:
  
  “39AA.Information regarding casting of votes. -(1)
  Notwithstanding anything contained in rule 39A, the
  presiding officer shall, between the period when an
  elector being a member of a political party records his
  vote on a ballot paper and before such elector inserts
  that ballot paper into the ballot box, allow the authorised
  agent of that political party to verify as to whom such
  elector has cast his vote: Provided that if such elector
  refuses to show his marked ballot paper to the authorised
  agent of his political party, the ballot paper issued to him
  shall be taken back by the presiding officer or a polling
  officer under the direction of the presiding officer and the
  ballot paper so taken back shall then be further dealt with
  in the manner specified in sub-rules (6) to (8) of rule 39A
  as if such ballot paper had been taken back under sub-
  rule (5) of that rule.
  (2) Every political party, whose member as an elector casts a
  vote at a polling station, shall, for the purposes of sub-
  rule (1), appoint, in Form 22A, two authorised agents.
  (3) An authorised agent appointed under sub-rule (2) shall be
  present throughout the polling hours at the polling station
  and the other shall relieve him when he goes out of the
  polling station or vice versa.”

Arguments

Petitioner’s Arguments (Lok Prahari):

• The petitioner argued that Rule 39-AA of the Conduct of Election Rules, 1961, is unconstitutional because it violates Article 80(4) of the Constitution, which guarantees the right to vote in Rajya Sabha elections. According to the petitioner, the rule effectively takes away the right to vote if a voter refuses to show their ballot to the party agent.
• The petitioner contended that Rule 39-AA is violative of Article 14 of the Constitution, which guarantees equality before the law, as it creates an unreasonable classification by treating voters in Rajya Sabha elections differently from those in general elections.
• The petitioner argued that Rule 39-AA is contrary to Section 123(2) of the Representation of the People Act, 1951, which deals with undue influence in elections, as the open ballot system could lead to coercion and undue influence by political parties.
• The petitioner initially challenged the entirety of Rule 39-AA but later submitted that the rule should be read down. The petitioner proposed that if an elector refuses to show their ballot, the Presiding Officer should disclose the ballot to the party agent to avoid loss of the right to vote.
• The petitioner contended that the proviso to Section 33 of the Representation of the People Act, 1951, which requires independent candidates to have ten proposers, is discriminatory and impairs their right to contest elections.

Respondents’ Arguments (Union of India & Election Commission of India):

• The respondents argued that the open ballot system was introduced to prevent cross-voting and maintain party discipline in Rajya Sabha elections. They cited the Constitution Bench decision in Kuldip Nayar v. Union of India [(2006) 7 SCC 16], which upheld the open ballot system.
• The respondents contended that Rule 39-AA does not take away the right to vote but merely regulates it. They argued that the cancellation of a ballot occurs only when the voter refuses to disclose their vote to the party agent, which is a valid regulatory measure.
• The respondents submitted that the proviso to Section 33 of the Representation of the People Act, 1951, is a valid legislative policy aimed at ensuring the seriousness of candidates and is not discriminatory.
• The respondents argued that the open ballot system is not open to all but only to the authorized agent of the political party, ensuring that the process is not unduly intrusive.
• The respondents maintained that the open ballot system is necessary to maintain the purity of elections in indirect elections like those to the Rajya Sabha, where party discipline is crucial.

Submissions Table:

Issues Framed by the Supreme Court

The Supreme Court addressed the following issues:

1. Whether Rule 39-AA of the Conduct of Election Rules, 1961, is ultra vires Article 80(4) of the Constitution of India.
2. Whether Rule 39-AA is violative of Article 14 of the Constitution of India.
3. Whether Rule 39-AA is contrary to the provisions of Section 123(2) of the Representation of the People Act, 1951.
4. Whether the proviso to Section 33 of the Representation of the People Act, 1951, is constitutionally valid.

Treatment of the Issue by the Court

Authorities

The Supreme Court relied on the following authorities:

• Kuldip Nayar v. Union of India [(2006) 7 SCC 16]: This Constitution Bench judgment upheld the validity of the open ballot system for Rajya Sabha elections. The Court in the present case reiterated that this judgment has already settled the issue, and the open ballot system was introduced to prevent cross-voting and maintain party discipline. The Court quoted the relevant portion of the judgment:
  
  “439.The effect of the amended Rules, thus, is that in elections
  to the Council of States, before the elector inserts the
  ballot paper into the ballot box, the authorized agent of
  the political party shall be allowed to verify as to whom
  such an elector casts his vote. In case such an elector
  refuses to show his marked ballot paper, the same shall
  be taken back and will be cancelled by the Presiding
  Officer on the ground that the voting procedure had been
  violated. There is, therefore, a compulsion on the voter to
  show his vote.”
  
  The Court also highlighted the following extract:
  
  “451.It cannot be forgotten that the existence of political
  parties is an essential feature of our parliamentary
  democracy and that it can be a matter of concern for
  Parliament if it finds that electors were resorting to cross-
  voting under the garb of conscience voting, flouting party
  discipline in the name of secrecy of voting. This would
  weaken the party discipline over the errant legislators.
  Political parties are the sine qua non of parliamentary
  democracy in our country and the protection of party
  discipline can be introduced as an essential feature of the
  purity of elections in case of indirect elections.”
  
  The court also quoted the following:
  
  “461.By the amendment, the right to vote is not taken away.
  Each elected Member of the Legislative Assembly of the
  concerned State is fully entitled to vote in the election to
  the Council of States. The only change that has come
  owing to the impugned amendment is that he has to
  disclose the way he has cast the vote to the
  representative of his Party. Parliament would justify it as
  merely a regulatory method to stem corruption and to
  ensure free and fair elections and more importantly to
  maintain purity of elections. This Court has held that
  secrecy of ballot and purity of elections should normally
  co-exist. But in the case of the Council of States, the
  Parliament in its wisdom has deemed it proper that
  secrecy of ballot should be done away with in such an
  indirect election, to ensure purity of election.”

The Court also considered the following legal provisions:

• Article 80 of the Constitution of India
• Article 171(3)(d) of the Constitution of India
• Section 33 of the Representation of the People Act, 1951
• Section 59 of the Representation of the People Act, 1951
• Section 94 of the Representation of the People Act, 1951
• Section 128(1) of the Representation of the People Act, 1951
• Rule 39-AA of the Conduct of Election Rules, 1961

Authorities Considered by the Court

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Supreme Court relied on Kuldip Nayar v. Union of India [(2006) 7 SCC 16], stating that the Constitution Bench in that case had already upheld the open ballot system for Rajya Sabha elections. The court stated that the judgment had settled the issue and the present challenge was not sustainable.
• The Court interpreted Article 80 of the Constitution of India to understand the composition of the Council of States and the method of election.
• The Court referred to Article 171(3)(d) of the Constitution of India to understand the composition of Legislative Councils.
• The Court interpreted the proviso to Section 33 of the Representation of the People Act, 1951 regarding the requirements for independent candidates.
• The Court interpreted the proviso to Section 59 of the Representation of the People Act, 1951 regarding the open ballot system for Rajya Sabha elections.
• The Court interpreted the proviso to Section 94 of the Representation of the People Act, 1951 regarding the non-application of secrecy of voting to open ballot systems.
• The Court interpreted the proviso to Section 128(1) of the Representation of the People Act, 1951 regarding the non-application of secrecy of voting to open ballot systems.
• The Court upheld the validity of Rule 39-AA of the Conduct of Election Rules, 1961, stating that it is a valid regulatory measure to prevent cross-voting.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the need to maintain the purity of elections and party discipline in the context of Rajya Sabha elections. The court emphasized that the open ballot system was introduced to prevent cross-voting, which can undermine the integrity of the electoral process. The court also highlighted that the open ballot system is not open to the general public but only to authorized party agents, thus balancing the need for transparency with the need to prevent undue influence. The court also noted that the cancellation of a ballot occurs only when the voter refuses to disclose their vote to the party agent, and this is a valid regulatory measure.

The Court also relied on the earlier Constitution Bench judgment in Kuldip Nayar v. Union of India [(2006) 7 SCC 16], which had already upheld the open ballot system. The court reiterated that the open ballot system does not violate the right to vote, but rather regulates it to ensure the purity of elections. The court also noted that the requirement for independent candidates to have ten proposers is a valid legislative policy aimed at ensuring the seriousness of candidates.

The court’s reasoning was also influenced by the fact that the Rajya Sabha elections are based on proportional representation, where party discipline is crucial. The court noted that the open ballot system is necessary to maintain party discipline and prevent cross-voting in these elections.

Logical Reasoning

Issue 1: Validity of Rule 39-AA concerning Article 80(4)

Issue 2: Validity of Rule 39-AA concerning Article 14

Issue 3: Validity of Rule 39-AA concerning Section 123(2) of the 1951 Act

Issue 4: Validity of Proviso to Section 33 of the 1951 Act

Final Order

The Supreme Court dismissed the Writ Petition (Civil) No 1141 of 2020. The Court upheld the constitutional validity of Rule 39-AA of the Conduct of Election Rules, 1961 and the proviso to Section 33 of the Representation of the People Act, 1951. The Court held that the open ballot system for Rajya Sabha elections and the requirement for independent candidates to have ten proposers are constitutionally valid.