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Synopsis

The Supreme Court recently dismissed a PIL seeking to allow secret ballot in polls for the Rajya Sabha and State Legislative Councils, noting that the open ballot system is necessary to prevent cross-voting and to maintain party discipline.

A Chief Justice of India DY Chandrachud led bench, also comprising Justices PS Narasimha and JB Pardiwala also dismissed the challenge to sub-section 1 of Section 33 of the Representation of the People Act, 1951 which stipulated that in order to be a candidate for Rajya Sabha and state legislative council elections, a person, if not nominated by a political party, must have the support of ten elected members.

An NGO, Lok Prahari, had challenged Rule 39AA of the Conduct of Election Rules, 1961 which mandated that in elections for the Rajya Sabha and State Legislative Councils, MLAs and MPs must present their marked ballots to the polling agent of their respective political parties.

"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 the nomination per se is presented. In view of the above discussions, the petition is dismissed,” the bench said in its order.

Referring to a ruling, it was stated that the issue had been reviewed in the Kuldeep Nayyar judgment and that the Constitution bench had determined that after the amendment, the voting for the council had experienced an enormous change, with secret ballots being replaced by open ballots.

The Constitution bench held that it is only when the voter at such an election does not show his ballot paper, he forfeits his right to vote. The court further had held that an open ballot system does not mean open to one and all but only the authorised political representative to see for whom the elector has cast a vote.

Bench added that in the Nayyar judgment, it was held that the rule did not violate the concept of free and fair elections.

“The provision was inserted to prevent cross-voting in elections to the council of states. Against this backdrop there is no merit in the challenge,” Court held while refusing to accept the plea that the rule be either struck down or read down.

Top Court also distinguished between the secret ballot system in general elections and the open ballot system on the basis that the former is for conducting free and fair elections while the latter is for keeping party discipline and preventing cross-voting.