Supreme Court of India
LOK PRAHARI versus UNION OF INDIA & ORS on 27 March 2023
LOK PRAHARI
v.
UNION OF INDIA & ORS
(Writ Petition (Civil) No. 1141 of 2020)
MARCH 27, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI,PAMIDIGHANTAM SRI NARASIMHA AND
J. B. PARDIWALA, JJ.]
Conduct of Election Rules, 1961 – Rule 39-AA –Representation of the People Act, 1951 – ss. 59, 94 and 128(1),amended by Act of 2003 – Challenge to r. 39-AA – Petitioner haschallenged the constitutional validity of rule 39-AA on the groundthat the said rule violates Art. 80(4), Art.14 of the Constitution andis also contrary to s.123 of the Representation of the People Act,1951 – Held: The Constitution Bench in Kuldip Nayar v. Union ofIndia held that after the amendment, voting to the Council of Stateshas undergone a material change and that the norm of voting by asecret ballot has been replaced by open ballot – The ConstitutionBench held that it is only a voter at such an election who refuses toshow the ballot to the authorised agent of his political party, whoforfeits the right to vote – The Court then held that the open ballotsystem which has been put in position “does not mean open to oneand all” and it is only the authorised agent of the political partywho is allowed to see and verify the person for whom the electorhas cast a vote – The Court held that the underlying basis of thechange in the norm, to an open ballot, was necessitated to preventcross-voting and the flouting of party discipline – Therefore, thechallenge must fail in view of the judgment of the Constitution Bench.
Representation of the People Act, 1951 – proviso to s.33 –Challenge to – Held: The proviso stipulates that a candidate who isnot set up by a recognized political party shall not be deemed to beduly nominated for election unless the nomination paper issubscribed by ten proposers who are electors of the constituency –This lies purely in the realm of legislative policy – There is nothingper se discriminatory in the provision – Parliament is entitled toregulate the manner in which nomination papers should be presentedand the requirements for a valid nomination.
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358SUPREME COURT REPORTS
[2023] 7 S.C.R.
ADismissing the writ petition, the CourtHELD: Rule 39-AA of the Conduct of Election Rules 19611. The rationale for the introduction of the provision forvoting by open ballot in elections to the Council of States hasbeen examined in a decision of the Constitution Bench in KuldipBNayar v Union of India . The Constitution Bench held that afterthe amendment, voting to the Council of States has undergone amaterial change and that the norm of voting by a secret ballot hasbeen replaced by open ballot. The Constitution Bench held thatit is only a voter at such an election who refuses to show theCballot to the authorised agent of his political party, who forfeitsthe right to vote. The Court then held that the open ballot systemwhich has been put in position “does not mean open to one andall” and it is only the authorised agent of the political party who isallowed to see and verify the person for whom the elector hascast a vote. The Court held that the underlying basis of the changeDin the norm, to an open ballot, was necessitated to prevent cross-voting and the flouting of party discipline. [Paras 11, 12][362-E-G; 363-B-C]
2. The Constitution Bench held that in a general election,secrecy of voting is required to maintain the purity of the electoralEsystem. A voter is entitled to exercise the right to vote in a freeand fair manner without disclosing how he has voted. However,the concept of “constituency-based representation” in a generalelection is distinct from “proportional representation”. In a caseof “proportional representation”, voters are subject to partyFdiscipline, The Constitution Bench held that it is legitimately opento prescribe the methodology of an open ballot for conductingelections to the Council of States. The Court has held that theamendment does not take away the right to vote, but onlyregulates the right so as to eliminate the evil of cross-voting byan elector who has been elected to the Assembly of a particularGState on the basis of a party nomination. [Para 13][363-E-G]
Proviso to Section 33 of the 1951 Act
3. The proviso stipulates that a candidate who is not set upby a recognized political party shall not be deemed to be duly H
nominated for election unless the nomination paper is subscribedAby ten proposers who are electors of the constituency. This liespurely in the realm of legislative policy. There is nothing per sediscriminatory in the provision. Parliament is entitled to regulatethe manner in which nomination papers should be presented andthe requirements for a valid nomination. [Paras 18 and 19][365-BD-E]
Kuldip Nayar v Union of India [2006] 5 Suppl. SCR 1– relied on.
Case Law Reference
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[2006] 5 Suppl. SCR 1relied onPara 11
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.1141 of 2020.
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
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S. N. Shukla, Petitioner-in-person
K M Nataraj, A.S.G., Ardhendumauli Kumar Prashad, A.A.G.,Rajat Nair, Shailesh Madiyal, Ms. Shraddha Desmukh, Ms. Ruchi GourNarula, Arvind Kumar Sharma, Amit Sharma, Dipesh Sinha, Ms. PallaviBarua, Ms. Sakshi Upadhyaya, Ms. Aparna Singh, Adarsh Upadhyay,Ashish Madaan, Ms. Shreya Srivastava, Aman Pathak, Ms. PallaviKumari, Ms. Ananya Sahu, Advs. for the Respondents.
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The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, CJI
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1. The jurisdiction of this Court under Article 32 of the Constitutionhas been invoked by Lok Prahari, a society registered under the SocietiesRegistration Act 1860. The petitioner has been represented in theseproceedings by Mr S N Shukla, who is the General Secretary. Twospecific challenges have been set up to the vires of:
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(i) Rule 39-AA of the Conduct of Election Rules 1961[1]; and G
(ii) The proviso to Section 33 of the Representation of the People Act 1951[2].
1 “1961 Rules”
2 “1951 Act”
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A2. Article 80 of the Constitution provides for the composition ofthe Council of States. Article 80(1)(b) envisages that the Council ofStates shall consist of “not more than two hundred and thirty eightrepresentative of the States and of the Union Territories”. The allocationof seats in the Council of States to be filled by representatives of theStates and Union Territories is in accordance with the provisions containedBin the Fourth Schedule[3]. Clause (4) of Article 80 stipulates that therepresentatives of each State in the Council of States shall be elected bythe elected members of the Legislative Assembly of the State inaccordance with the system of proportional representation by means ofthe single transferable vote. As regards the Legislative Councils, ArticleC171(3)(d) stipulates that one-third of the members shall be elected bythe members of the Legislative Assembly of the State from amongstpersons who are not members of the Assembly.
3. According to the petitioner, for fifty years after the enactmentof the 1951 Act, elections to both the Council of States and LegislativeDCouncils were conducted by secret ballot. However, by Act 40 of 2003,Sections 59, 94 and 128(1) of the 1951 Act were amended so as toprovide for an open ballot system for elections to the Rajya Sabha.The proviso to Section 59 stipulates that the votes at every election tofill a seat or seats in the Council of States shall be given by open ballot.Section 94 which protects the secrecy of voting contains a proviso toEthe effect that the Section shall not apply to a situation where thevoting is by open ballot. A similar provision has been made in the provisoto Section 128(1).
4. Rule 39-AA of the 1961 Rules was inserted by a notificationdated 27 February 2004. Rule 39-AA reads as follows:F
“39AA. Information regarding casting of votes. -(1)Notwithstanding anything contained in rule 39A, thepresiding officer shall, between the period when anelector being a member of a political party records hisvote on a ballot paper and before such elector insertsGthat ballot paper into the ballot box, allow the authorisedagent of that political party to verify as to whom suchelector has cast his vote: Provided that if such electorrefuses to show his marked ballot paper to the authorised H3 clause (2) of Article 80
agent of his political party, the ballot paper issued to himshall be taken back by the presiding officer or a pollingofficer under the direction of the presiding officer andthe ballot paper so taken back shall then be further dealtwith in the manner specified in sub-rules (6) to (8) ofrule 39A as if such ballot paper had been taken backunder sub-rule (5) of that rule.
(2) Every political party, whose member as an elector castsa 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) shallbe present throughout the polling hours at the pollingstation and the other shall relieve him when he goes outof the polling station or vice versa.”
5. The petitioner has sought to challenge the constitutional validityof Rule 39-AA on the ground that it is (i) ultra vires Article 80(4) of theConstitution; (ii) violative of Article 14; and (iii) contrary to the provisionsof Section 123(2) of the 1951 Act.
6. We have heard Mr S N Shukla, petitioner, who appears in person,Mr K M Nataraj, Additional Solicitor General for the Union of India andMr Amit Sharma, counsel appearing on behalf of the Election Commissionof India.
7. Though in the petition, the entirety of Rule 39-AA is sought tobe challenged, Mr S N Shukla, submits that the Rule should be readdown in an appropriate manner.
8. In order to appreciate the submission, it would be necessary toadvert to the salient provisions of Rule 39-AA. Rule 39-AA stipulatesthat when an elector who is a member of a political party records hisvote on a ballot paper, they must allow the authorised agent of that partyto verify as to whom such an elector has cast his vote before the ballotpaper is inserted into the ballot box. If the elector refuses to show themarked ballot paper to the authorised agent of his political party, theballot paper has to be taken back by the Presiding Officer or PollingOfficer and is to be dealt with in the manner prescribed in sub-Rules (6)to (8) of Rule 39A, as if the ballot paper had been taken back under sub-Rule (5).
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A9. Sub-Rules (6) to (8) of Rule 39A are in the following terms:
“(6)After the ballot paper has been taken back, the presidingofficer shall record on its back the words “Cancelled:voting procedure violated” and put his signature belowthose words.
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(7) All the ballot papers on which the words “Cancelled: votingprocedure violated” are recorded, shall be kept in a separatecover which shall bear on its face the words “Ballot papers:voting procedure violated”.
(8) Without prejudice to any other penalty to which an elector,Cfrom whom a ballot paper has been taken back under sub-rule (5), may be liable, vote, if any, recorded on such ballotpaper shall not be counted.”
Sub-Rules (6) to (8) of Rule 39A stipulate that after the ballotDpaper has been taken back, the Presiding Officer shall record anendorsement on it that it has been cancelled.
10. The submission which has been urged is that, as a consequenceof the above procedure, the elector would lose the right to vote underArticle 80(4) of the Constitution.
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11. The rationale for the introduction of the provision for voting byopen ballot in elections to the Council of States has been examined in adecision of the Constitution Bench in Kuldip Nayar v Union of India[4].The Constitution Bench held that after the amendment, voting to theCouncil of States has undergone a material change and that the norm ofFvoting by a secret ballot has been replaced by open ballot. The ConstitutionBench held that it is only a voter at such an election who refuses toshow the ballot to the authorised agent of his political party, who forfeitsthe right to vote. The Court observed:
“439. The effect of the amended Rules, thus, is that in electionsGto the Council of States, before the elector inserts the ballotpaper into the ballot box, the authorized agent of the politicalparty shall be allowed to verify as to whom such an electorcasts his vote. In case such an elector refuses to show hismarked ballot paper, the same shall be taken back and will be cancelled by the Presiding Officer on the ground thatthe voting procedure had been violated. There is, therefore,a compulsion on the voter to show his vote.”
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12. The Court then held that the open ballot system which hasbeen put in position “does not mean open to one and all” and it is only theauthorised agent of the political party who is allowed to see and verifythe person for whom the elector has cast a vote. The Court held that theunderlying basis of the change in the norm, to an open ballot, wasnecessitated to prevent cross-voting and the flouting of party discipline.The Court held:
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“451. It cannot be forgotten that the existence of political partiesCis an essential feature of our parliamentary democracy andthat it can be a matter of concern for Parliament if it findsthat electors were resorting to cross-voting under the garbof conscience voting, flouting party discipline in the nameof secrecy of voting. This would weaken the party disciplineDover the errant legislators. Political parties are the sine quanon of parliamentary democracy in our country and theprotection of party discipline can be introduced as anessential feature of the purity of elections in case of indirectelections.”
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13. The Constitution Bench held that in a general election, secrecyof voting is required to maintain the purity of the electoral system. Avoter is entitled to exercise the right to vote in a free and fair mannerwithout 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 itis legitimately open to prescribe the methodology of an open ballot forconducting elections to the Council of States. The Court has held thatthe amendment does not take away the right to vote, but only regulatesthe right so as to eliminate the evil of cross-voting by an elector who hasbeen elected to the Assembly of a particular State on the basis of a partynomination. The Court held:
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“461. By the amendment, the right to vote is not taken away.Each elected Member of the Legislative Assembly of theconcerned State is fully entitled to vote in the election to H
the Council of States. The only change that has come owingto the impugned amendment is that he has to disclose theway he has cast the vote to the representative of his Party.Parliament would justify it as merely a regulatory methodto stem corruption and to ensure free and fair elections andmore importantly to maintain purity of elections. This Courthas held that secrecy of ballot and purity of elections shouldnormally co-exist. But in the case of the Council of States,the Parliament in its wisdom has deemed it proper thatsecrecy of ballot should be done away with in such anindirect election, to ensure purity of election.”
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14. The challenge in the petition, as framed, is to the validity ofRule 39-AA. The challenge must fail in view of the judgment of theConstitution Bench. However, the petitioner, appearing through Mr S NShukla, submits that the Rule should be read down. The manner in whichhe proposes that the Rule should be re-interpreted is by postulating thatDin the event that the elector does not show the ballot to the agent of thepolitical party, the Presiding Officer should disclose the ballot to the agentof the political party. In that event, it was urged, there would be no lossof the right to vote per se.
15. Apart from the fact that this is not the canvas of the petition,Eas drafted, even on merits, we do not find any substance in the plea.
16. The fact that an alternate means could subserve the sameend would not make the Rule unconstitutional. As the Constitution Benchheld, the Rule does not prevent or foreclose the exercise of the right tovote but only regulates it. The cancellation of the ballot is in a situationFwhere the elector refuses to disclose it to the agent of his political party.The elector having evinced an intent not to disclose the vote to the agentof their political party, it would be far-fetched to still sustain the vote bycasting the burden on the Presiding Officer to disclose the vote to theauthorised representative of the political party. As the Constitution Benchalso noted, this does not violate a free and fair election. The provisionGwas inserted specifically to prevent cross-voting in elections to the Councilof States. In this backdrop, there is no merit in the challenge.
17. The second challenge which has been addressed in the petitionis to the proviso to Section 33 of the 1951 Act. Sub-section (1) of Section33, in its substantive part, and the first proviso, are set out below:
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“33.Presentation of nomination paper and requirements for aAvalid nomination.—
(1) On or before the date appointed under clause (a) of section30 each candidate shall, either in person or by his proposer,between the hours of eleven o’clock in the forenoon andthree o’clock in the afternoon deliver to the returning officerat the place specified in this behalf in the notice issued undersection 31 a nomination paper completed in the prescribedform and signed by the candidate and by an elector of theconstituency as proposer:
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Provided that a candidate not set up by a recognised politicalparty, shall not be deemed to be duly nominated for electionfrom a constituency unless the nomination paper issubscribed by ten proposers being electors of theconstituency.”
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18. The proviso stipulates that a candidate who is not set up by arecognized political party shall not be deemed to be duly nominated forelection unless the nomination paper is subscribed by ten proposers whoare electors of the constituency.
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19. This lies purely in the realm of legislative policy. There isnothing per se discriminatory in the provision. Parliament is entitled toregulate the manner in which nomination papers should be presentedand the requirements for a valid nomination.
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20. In view of the above discussion, we find no merit in the petition.The petition shall accordingly stand dismissed.
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21. Pending application, if any, stands disposed of.
Ankit Gyan(Assisted by : Mahendra Yadav, LCRA)
Writ petition dismissed.
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