Summary
A registered society challenged under Article 32 Rule 39-AA of the Conduct of Election Rules, 1961, which requires a legislator voting in a Council of States election to show the marked ballot to his party's authorised agent and provides for cancellation on refusal, and the proviso to Section 33 of the Representation of the People Act, 1951, which requires ten proposers for a candidate not set up by a recognised party. The Supreme Court dismissed the petition: the challenge to the open ballot rule fails under the Constitution Bench decision in Kuldip Nayar, which upheld it as a regulation of the vote to prevent cross-voting and protect party discipline; the rule cannot be read down to require the Presiding Officer to disclose the vote where the elector refuses; and the ten-proposer requirement is legislative policy and not discriminatory.
Issues
- Whether Rule 39-AA of the Conduct of Election Rules, 1961, providing for open ballot and cancellation of the ballot of an elector who refuses to show it to his party's agent, is ultra vires Article 80(4), violative of Article 14 or contrary to Section 123(2) of the Representation of the People Act, 1951, or should be read down.
- Whether the proviso to Section 33(1) of the Representation of the People Act, 1951 requiring ten proposers for a candidate not set up by a recognised political party is unconstitutional.
Provisions considered
- Rule 39-AA read with Rule 39A(6) to (8), Conduct of Election Rules, 1961An elector who is a member of a political party must allow the party's authorised agent to verify his vote before inserting the ballot; on refusal the ballot is taken back and cancelled. The rule regulates rather than takes away the right to vote and was upheld in Kuldip Nayar. (¶¶ 4, 8, 9, 11, 12, 13, 14, 16)
- Sections 59, 94 and 128(1) as amended by Act 40 of 2003, Representation of the People Act, 1951Votes at elections to the Council of States are given by open ballot and the secrecy provisions do not apply to such voting. (¶ 3)
- Proviso to Section 33(1), Representation of the People Act, 1951A candidate not set up by a recognised political party is duly nominated only if the nomination paper is subscribed by ten proposers who are electors of the constituency; this is a matter of legislative policy and Parliament may regulate the requirements for a valid nomination. (¶¶ 17, 18, 19)
- Article 80(4), Constitution of IndiaRepresentatives of each State in the Council of States are elected by the elected members of the Legislative Assembly by proportional representation; the open ballot rule does not deprive such members of the right to vote under this provision. (¶¶ 2, 10, 13, 16)
Held
- The Constitution Bench in Kuldip Nayar held that the open ballot system for elections to the Council of States, open only to the authorised agent of the elector's own party, does not take away the right to vote but regulates it to eliminate cross-voting under the garb of conscience voting and to protect party discipline, which is an essential feature of the purity of indirect elections; the challenge to Rule 39-AA therefore fails. (¶¶ 11, 12, 13, 14)
- The rule cannot be read down so that, where the elector refuses to show the ballot, the Presiding Officer discloses it to the party's agent; that an alternative means could serve the same end does not render the rule unconstitutional, and having evinced an intent not to disclose the vote to his party's agent the elector cannot have the vote sustained by casting that burden on the Presiding Officer. (¶¶ 14, 15, 16)
- The requirement of ten proposers for a candidate not set up by a recognised political party lies purely in the realm of legislative policy; there is nothing per se discriminatory in it and Parliament may regulate the manner of presenting nomination papers and the requirements for a valid nomination. (¶¶ 18, 19)
Result
Writ petition dismissed; challenges to Rule 39-AA of the Conduct of Election Rules, 1961 and to the proviso to Section 33(1) of the Representation of the People Act, 1951 rejected; pending applications disposed of.