Dr Dhananjaya Y Chandrachud, CJI
1 The jurisdiction of this Court under Article 32 of the Constitution has been
invoked by Lok Prahari, a society registered under the Societies Registration Act
1860. The petitioner has been represented in these proceedings by Mr S N
Shukla, who is the General Secretary. Two specific challenges have been set up
to the vires of:
(i) Rule 39-AA of the Conduct of Election Rules 19611; and
(ii) The proviso to Section 33 of the Representation of the People Act 19512.
Sanjay Kumar States. Article 80(1)(b) envisages that the Council of States shall consist of “not more than two hundred and thirty eight representative of the States and of the
1 “1961 Rules” 2 “1951 Act”
Union Territories”. The allocation of seats in the Council of States to be filled by
representatives of the States and Union Territories is in accordance with the
provisions contained in the Fourth Schedule3. Clause (4) of Article 80 stipulates
that the representatives of each State in the Council of States 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. As regards the Legislative Councils, Article 171(3)(d)
stipulates 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.
3 According to the petitioner, for fifty years after the enactment of the 1951 Act,
elections to both the Council of States and Legislative Councils 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 to provide for an open ballot system for elections
to the Rajya Sabha. The proviso to Section 59 stipulates that the votes at every
election to fill 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 to the
effect that the Section shall not apply to a situation where the voting is by open
ballot. A similar provision has been made in the proviso to Section 128(1).
4 Rule 39-AA of the 1961 Rules was inserted by a notification dated 27 February
2004. Rule 39-AA reads as follows:
3 clause (2) of Article 80
"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."
5 The petitioner has sought to challenge the constitutional validity of Rule 39-AA
on the ground that it is (i) ultra vires Article 80(4) of the Constitution; (ii)
violative of Article 14; and (iii) contrary to the provisions of 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 and Mr Amit Sharma, counsel
appearing on behalf of the Election Commission of India.
7 Though in the petition, the entirety of Rule 39-AA is sought to be challenged, Mr
S N Shukla, submits that the Rule should be read down in an appropriate
manner.
8 In order to appreciate the submission, it would be necessary to advert to the
salient provisions of Rule 39-AA. Rule 39-AA stipulates that when an elector who
is a member of a political party records his vote on a ballot paper, they must
allow the authorised agent of that party to verify as to whom such an elector has
cast his vote before the ballot paper is inserted into the ballot box. If the elector
refuses to show the marked ballot paper to the authorised agent of his political
party, the ballot paper has to be taken back by the Presiding Officer or Polling
Officer 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).
9 Sub-Rules (6) to (8) of Rule 39A are in the following terms:
“(6) After the ballot paper has been taken back, the presiding
officer shall record on its back the words "Cancelled:
voting procedure violated" and put his signature below
those words.
(7) All the ballot papers on which the words "Cancelled:
voting procedure violated" are recorded, shall be kept in
a separate cover which shall bear on its face the words
"Ballot papers: voting procedure violated".
(8) Without prejudice to any other penalty to which an
elector, from whom a ballot paper has been taken back
under sub-rule (5), may be liable, vote, if any, recorded
on such ballot paper shall not be counted.”
Sub-Rules (6) to (8) of Rule 39A stipulate that after the ballot paper has been
taken back, the Presiding Officer shall record an endorsement on it that it has
been cancelled.
10 The submission which has been urged is that, as a consequence of the above
procedure, the elector would lose the right to vote under Article 80(4) of the
Constitution.
11 The rationale for the introduction of the provision for voting by open ballot in
elections to the Council of States has been examined in a decision of the
Constitution Bench in Kuldip Nayar v Union of India4. The Constitution Bench
held that after the amendment, voting to the Council of States has undergone a
material change and that the norm of voting by a secret ballot has been
replaced by open ballot. The Constitution Bench held that it is only a voter at
such an election who refuses to show the ballot to the authorised agent of his
political party, who forfeits the right to vote. The Court observed:
“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.”
12 The Court then held that the open ballot system which has been put in position
“does not mean open to one and all” and it is only the authorised agent of the
political party who is allowed to see and verify the person for whom the elector
has cast a vote. 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 Court held:
“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
4 (2006) 7 SCC 1
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.”
13 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. The Court
has held that the amendment does not take away the right to vote, but only
regulates the right so as to eliminate the evil of cross-voting by an elector who
has been elected to the Assembly of a particular State on the basis of a party
nomination. The Court held:
“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.”
14 The challenge in the petition, as framed, is to the validity of Rule 39-AA. The
challenge must fail in view of the judgment of the Constitution Bench. However,
the petitioner, appearing through Mr S N Shukla, submits that the Rule should be
read down. The manner in which he proposes that the Rule should be re-
interpreted is by postulating that in the event that the elector does not show the
ballot to the agent of the political party, the Presiding Officer should disclose the
ballot to the agent of the political party. In that event, it was urged, there would
be no loss of the right to vote per se.
15 Apart from the fact that this is not the canvas of the petition, as drafted, even on
merits, we do not find any substance in the plea.
16 The fact that an alternate means could subserve the same end would not make
the Rule unconstitutional. As the Constitution Bench held, the Rule does not
prevent or foreclose the exercise of the right to vote but only regulates it. The
cancellation of the ballot is in a situation where 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 agent of their political party, it would be far-fetched to
still sustain the vote by casting the burden on the Presiding Officer to disclose
the vote to the authorised representative of the political party. As the
Constitution Bench also noted, this does not violate a free and fair election. The
provision was inserted specifically to prevent cross-voting in elections to the
Council of States. In this backdrop, there is no merit in the challenge.
17 The second challenge which has been addressed in the petition is to the proviso
to Section 33 of the 1951 Act. Sub-section (1) of Section 33, in its substantive
part, and the first proviso, are set out below:
“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.”
18 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.
19 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.
20 In view of the above discussion, we find no merit in the petition. The petition
shall accordingly stand dismissed.
21 Pending application, if any, stands disposed of.
[Dr Dhananjaya Y Chandrachud]
[Pamidighantam Sri Narasimha]
[J B Pardiwala] New Delhi; March 27, 2023 -S-
Writ Petition(s)(Civil) No(s).1141/2020
LOK PRAHARI Petitioner(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
Date : 27-03-2023 This petition was called on for hearing today.
CORAM :
For Petitioner(s) Mr. S.N. Shukla, Petitioner-in-person
For Respondent(s) Mr. K M Nataraj, A.S.G.
Mr. Rajat Nair, Adv.
Mr. Shailesh Madiyal, Adv.
Ms. Shraddha Desmukh, Adv.
Ms. Ruchi Gour Narula, Adv.
Mr. Arvind Kumar Sharma, AOR
Mr. Amit Sharma, AOR
Mr. Dipesh Sinha, Adv.
Ms. Pallavi Barua, Adv.
Ms. Sakshi Upadhyaya, Adv.
Ms. Aparna Singh, Adv.
Mr. Ardhendumauli Kumar Prashad, A.A.G.
Mr. Adarsh Upadhyay, AOR
Mr. Ashish Madaan, Adv.
Ms. Shreya Srivastava, Adv.
Mr. Aman Pathak, Adv.
Ms. Pallavi Kumari, Adv.
Ms. Ananya Sahu, Adv.
UPON hearing the counsel the Court made the following
O R D E R
1 The petition is dismissed in terms of the signed order.
2 Pending application, if any, stands disposed of.
(SANJAY KUMAR-I) (SAROJ KUMARI GAUR) DEPUTY REGISTRAR ASSISTANT REGISTRAR
(Signed order is placed on the file)