Kuldip Nayar And Others v. Union Of India And Others

Part B — Secrecy of ballot re Purity of indirect elections

ZA. Election — Conduct of Election — Secrecy of ballot vis-à-vis conduct of free and fair elections and purity of elections — Relative importance of — Former when to yield to latter — Held, out of the two competing principles, the purity of election principle must have its way — If secrecy becomes a source for corruption then sunlight and transparency have the capacity to remove it — Impugned amendment replacing secret ballot with open ballot, to remove evil of cross-voting for consideration in Rajya Sabha elections, cannot therefore be faulted — Constitution of India — Arts. 327, 328 and Sch.. VII List I Entry 72 — Representation of the People Act, 1951 — Ss. 59, 94, 128 (as amended by Act 40 of 2003) and 62 — Conduct of Elections Rules, 1961 — Rr. 39-A and 39-AA

ZB. Election — Conduct of Election — Secrecy of voting — Scope — When can be breached — Held, voter if he chooses, can give up his privilege and disclose whom he has voted for — Such an event can also happen if there is fraud, forgery or other illegal act and disclosure subserves purpose of administration of justice — Election — Representation of the People Act, 1951, Ss. 59, 94 and 128

The principle of secrecy is not an absolute principle. The secrecy of ballot is a vital principle for ensuring free and fair elections. The higher principle, however, is free and fair elections and purity of elections. Out of the two competing principles, the purity of election principle must have its way and the rule of secrecy cannot be pressed into service “to suppress a wrong coming to light and to protect a fraud on the election process”. If secrecy becomes a source for corruption then sunlight and transparency have the capacity to remove it. In the present case in respect of the introduction of “open ballot” voting in elections to the Rajya Sabha for elimination of the evil of cross-voting for consideration, it can only be said that legislation pursuant to a legislative policy that transparency will eliminate the evil that has crept in would hopefully serve the larger object of free and fair elections.

(Paras 463, 464 and 421)

Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1; S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, 1980 Supp SCC 53; A. Neelalohithadasan Nadar v. George Mascrene, 1994 Supp (2) SCC 619, relied on

R. v. Beardsall, (1876) 1 QBD 452 : 45 LJMC 157 : 34 LT 660, approved

Sub-Committee on Judicial Accountability v. Union of India, (1991) 4 SCC 699, referred to

Burson v. Mary, 504 US 191 : 119 L Ed 2d 5 (1992); Lily Thomas v. Speaker, Lok Sabha, (1993) 4 SCC 234; S.R Chaudhuri v. State of Punjab, (2001) 7 SCC 126, cited

Under elections that continue to be based on the principle of secrecy of voting, it is for the voter to choose whether he wishes to disclose for whom he had voted or would like to keep the secrecy intact. If he so chooses, he can give up his privilege and in that event, the secrecy of ballot should yield. Such an event can also happen if there is fraud, forgery or other illegal act and the disclosure subserves the purpose of administration of justice.

(Para 409)

ZC. Constitution of India — Arts. 80, 55 & 66, 327, 328 and Sch. VII List I Entry 72 — Rajya Sabha elections — Removal of secret ballot and introduction of open ballot system by amendment of relevant provisions of RP Act, 1951 — Validity of — Held, there is no requirement of Rajya Sabha elections to be by secret ballot in Art. 80(4) — To read such a requirement into Art. 80(4) would be read in words that are not present — Where Constitution thought it fit do so, it has itself provided for elections by secret ballot, as in case of Arts. 55(3) and 66(1) — Hence it was permissible for Parliament to choose between system of secret ballot or open ballot — There is hence no constitutional infirmity in providing open ballot system for Rajya Sabha elections — Election — Representation of the People Act, 1951 — Ss. 59, 94, 128 (as amended by Act 40 of 2003) and 62

ZD. Constitution of India — Arts. 80, 327, 328 and Sch. VII List I Entry 72 — Right to vote and elect Rajya Sabha MPs — Nature and scope — Regulation of Rajya Sabha elections — Legislative competence — Scope — Held, right to vote and elect Rajya Sabha MPs is not a constitutional right — Art. 80(4) merely deals with manner of election of Rajya Sabha MPs — Further, manner of voting in Rajya Sabha elections can definitely be regulated by statute — Hence replacement of secret ballot by open ballot in Rajya Sabha elections, by law made by Parliament cannot be faulted — Election — Representation of the People Act, 1951 — Ss. 59, 94, 128 (as amended by Act 40 of 2003) and 62

ZE. Election — Right to vote — Scope — Secret ballot if implied −Constitutional position — Held, right to vote does not include right to vote in secrecy as an implied term — Where Constitution thought it fit to do so, it has itself provided for elections by secret ballot — Position obtaining in respect of Art. 80 compared with that in Arts. 55 and 66 — For secret ballot to be the norm, it must be expressly so provided — Constitution of India — Arts. 327, 328, 19(1)(a) and Sch. VII List I Entry 72 — Representation of the People Act, 1951 — Ss. 59, 94, 128 (as amended by Act 40 of 2003) and 62 — Conduct of Election

ZF. Election — Right to vote — Nature and scope — Held, right to vote, fundamental though it is to democracy, is neither a fundamental right nor a common law right, but pure and simple, a statutory right — PUCL case, (2003) 4 SCC 399, clarified in this context — Right to vote has to yield to the attainment of free and fair elections — Right to vote in free and fair elections hence is always in terms of an electoral system prescribed by national legislation — Constitution of India — Arts. 327, 328, 19(1)(a) and Sch. VII List I Entry 72 — Representation of the People Act, 1951 — S. 62

ZG. Election — Candidature — Right to stand for election — Nature and scope — Held, right to be elected is pure and simple a statutory right that can be created and taken away by Parliament — Therefore it must always be subject to statutory limitations — Representation of the People Act, 1951 — Ss. 3 to 6 — Constitution of India — Arts. 327, 328 and Sch.. VII List I Entry 72

ZH. Constitutional Interpretation — Basic rules — Literal construction — Adherence to — Reading in of words not contained in constitutional provisions — Impermissibility

ZI. Constitutional Interpretation — Basic rules — Contextual construction — Art. 80(4) silent on secrecy of voting in Rajya Sabha elections, while Arts. 55(3) and 66(1) explicitly providing for the same in case of election of President and Vice-President — Implication — Held, the same implies that in the latter two cases Constitution intended to provide for secret ballot and not in the third — Basic rules — Framers'/legislative intent

The submission that the majority view in PUCL case, (2003) 4 SCC 399, is that the right to vote is a constitutional right besides that it is also a facet of fundamental right under Article 19(1)(a) of the Constitution cannot be accepted. It is clear that a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression, while reiterating the view in Jyoti Basu, (1982) 1 SCC 691, that a right to elect, fundamental though it is to democracy, is neither a fundamental right nor a common law right, but pure and simple, a statutory right.

(Paras 361 and 362)

The right to vote is a concept which has to yield to the concept of the attainment of free and fair elections. The right to vote in “free and fair elections” is always in terms of an electoral system prescribed by national legislation. The right to vote derives its colour from the right to “free and fair elections”; that the right to vote is empty without the right to “free and fair elections”. It is the concept of “free and fair elections” in terms of an electoral system which provides content and meaning to the “right to vote”. That is to say “right to vote” is an ingredient of the free and fair elections. It is essential but not the necessary ingredient.

(Paras 448 and 450)

The right to vote in PUCL case, (2003) 4 SCC 399, has been treated to be carrying within it the constitutional right of freedom of expression. But the same cannot be said about the right to stand for election, since that is a right regulated by the statute. The right to be elected is indisputably a statutory right i.e the right to stand for elections can be regulated by law made by Parliament. It is pure and simple a statutory right that can be created and taken away by Parliament and, therefore, must always be subject to statutory limitations.

(Paras 298 and 299)

The right to vote and elect representatives of the State in the Council of States is not a constitutional right. Article 80(4) merely deals with the manner of election of the representatives in the Council of States as an aspect of the composition of the Council of States. There is nothing in the constitutional provisions declaring the right to vote in such election as an absolute right under the Constitution.

(Para 363)

There can be no denial of the fact that the manner of voting in the election to the Council of States can definitely be regulated by the statute. The Constitution does not provide that voting for an election to the Council of States shall be by secret ballot. The voting for an election to the Council of States till now was by secret ballot due to a law made by Parliament. It cannot be said that secret ballot in all forms of elections is a constitutional right.

(Para 460)

N.P Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 SCR 218 : AIR 1952 SC 64; Joseph Theberge v. Phillippe Laudry, (1876) 2 AC 102 : 46 LJPC 1 : 35 LT 640 (PC); Hari Prasad Mulshanker Trivedi v. V.B Raju, (1974) 3 SCC 415 : (1974) 1 SCR 548; Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691; Rama Kant Pandey v. Union of India, (1993) 2 SCC 438, affirmed and relied on

New National Party of South Africa v. Govt. of the Republic of South Africa, (1999) 3 SA 191, relied on

People's Union for Civil Liberties (PUCL) v. Union of India, (2003) 4 SCC 399, clarified and limited

Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294, discussed

August v. Electoral Commission, (1999) 3 SA 1 : (1999) 4 BCLR 363 : [1999] ZACC 3 : (1999) 3 SALR 1 (full text available online as on 15-9-2006 at www.worldlii.org/za/cases/ZACC/1999/3.html), cited

The submission on the part of the petitioners that a right to vote invariably carries as an implied term, the right to vote in secrecy, is not wholly correct. Where the Constitution thought it fit to do so, it has itself provided for elections by secret ballot e.g in the case of election of the President of India and the Vice-President of India. The Constitution does not provide that voting for an election to the Council of States shall be by secret ballot. It is apt to point out that unlike silence on the subject in the case of provisions of the Constitution concerning election to fill the seats of the representatives of the States in the Council of States, Articles 55(3) and 66(1), that relate to the manner of election for the offices of the President and the Vice-President respectively, provide for election by “secret ballot”. If the right to vote by itself implies or postulates voting in secrecy, then Articles 55(3) and 66(1) would not have required inclusion of the words “and the voting at such election shall be by secret ballot”. The necessity for including the said condition in the said articles shows that “secret ballot” is not always implied. It is not incorporated in the concept of voting by necessary implication.

(Paras 422, 423 and 460)

It follows that for “secret ballot” to be the norm, it must be expressly so provided. To read into Article 80(4) the requirement of a secret ballot would be to read the words “and the voting at such election shall be by secret ballot” into the provision. To do so would be against every principle of constitutional and statutory construction.

(Para 424)

In view of it not being the requirement of the Constitution, as in the case of the President and the Vice-President, it was permissible for Parliament when passing legislation like the Representation of the People Act to provide otherwise, that is, to choose between the system of secret ballot or open ballot. Thus it is difficult to hold that there is constitutional infirmity in providing open ballot system for the Council of States.

(Para 425)

ZJ. Constitution of India — Arts. 80, 81, 170, 327, 328 and Sch. VII List I Entry 72 — Rajya Sabha elections — Voting by open ballot — Permissibility of — Position contrasted with that for general elections to Lok Sabha and State Legislatures — Held, in a general election the electors have to vote in a secret manner without fear that their votes would be disclosed to anyone or would result in victimisation — There is no party affiliation and hence the choice is entirely with the voter — This is not the case in Rajya Sabha elections as the electors are elected MLAs who in turn have party affiliations — Importance of political parties, adherence to party discipline and legitimacy of measures to prevent cross-voting for consideration, emphasised — Constitution of Australia — Ss. 24 and 30 — Compared with Arts. 80(4) and 84 of Constitution of India — Election — Conduct of Election — Secret ballot — Elections in which constitutional right — Representation of the People Act, 1951 — Ss. 59, 94, 128 (as amended by Act 40 of 2003) and 62

ZK. Election — Conduct of Election — Secret ballot — Forms of election in which constitutional right — Constituency based (direct elections) and (indirect) list system of proportional representation — Positions in, compared — Held, in constituency-based representation, secrecy is the basis whereas in case of proportional representation in a representative democracy the basis can be open ballot — The latter would not violate the concept of “free and fair elections” — Reasons for, discussed — Representation of the People Act, 1951 — Ss. 59, 94, 128 (as amended by Act 40 of 2003) and 62 — Constitution of India — Arts. 327, 328 and Sch.. VII List I Entry 72

ZL. Election — Conduct of Election — Secret ballot — Forms of election in which constitutional right — Direct and indirect elections — Positions in, compared — Held, in case of direct elections, secret voting is insisted upon whereas in indirect elections open ballot can be introduced

ZM. Election — Electoral systems — Forms of — Constituency based direct elections and indirect list system of proportional representation — Compared and contrasted

ZN. Election — Right to vote — Effect of electoral form — Held, nature of elections, namely, direct or indirect, regulates concept of right to vote — Representation of the People Act, 1951, S. 62 — Constitution of India, Arts. 327, 328 and Sch. VII List I Entry 72

ZO. Constitutional Law — Basic Structure of Constitution — Elements of — Held, parliamentary democracy and multi-party system are an inherent part of the basic structure of the Constitution — Hence an amendment to restore popular faith in parliamentary democracy and in multi-party system cannot be faulted — Election — Representation of the People Act, 1951, Ss. 29-A to 29-C — Election — Political parties — Constitution of India, Arts. 368, preamble, 327, 328 and Sch. VII List I Entry 72

ZP. Constitution of India — Arts. 327, 328 and Sch.. VII List I Entry 72 — Indirect elections — Manner of voting — Features that may be introduced — Held, protection of party discipline can be introduced as an essential feature of purity of elections in case of indirect elections — Election — Representation of the People Act, 1951, Ss. 59 and 29-A to 29-C — Election — Conduct of Election — Election — Political parties

ZQ. Constitution of India — Arts. 327, 328 and Sch.. VII List I Entry 72 — Duty of Parliament — Conduct of elections — Procedure to be adopted — Held, procedure by which an election has to be held should further object of free and fair election — It is the duty of Parliament to take cognizance of electoral misbehaviour and misconduct and legislate remedial measures therefor

It cannot be said that secret ballot in all forms of elections is a constitutional right.

(Para 460)

The distinguishing feature between “constituency-based representation” and “proportional representation” in a representative democracy is that in the case of the list system of proportional representation, members are elected on party lines. They are subject to party discipline. They are liable to be expelled for breach of discipline. Therefore, to give effect to the concept of proportional representation, Parliament can suggest “open ballot”. In such a case, it cannot be said that “free and fair elections” would stand defeated by “open ballot”. In a constituency-based election it is the people who vote whereas in proportional representation it is the elector who votes. In constituency-based representation, “secrecy” is the basis whereas in the case of proportional representation in a representative democracy the basis can be “open ballot” and it would not violate the concept of “free and fair elections”, which concept is one of the pillars of democracy.

(Para 454)

The nature of elections, namely, direct or indirect, regulates the concept of right to vote. Where elections are direct, secret voting is insisted upon. Where elections are indirect and where members are chosen by indirect means, such as, by Parliament or by Legislative Assembly or by the executive, then open ballot can be introduced as a concept under the electoral system of voting. In the case of direct elections, members are chosen directly by popular vote which is not the case under indirect elections. Therefore, it cannot be said that the concept of open ballot would defeat the attainment of free and fair elections.

(Para 450)

The electoral systems world over contemplate variations. No one yardstick can be applied to an electoral system. The question whether election is direct or indirect and for which House members are to be chosen is a relevant aspect. All over the world in democracies, members of the House of Representatives are chosen directly by popular vote. Secrecy there is a must and insisted upon; in representative democracy, particularly to the Upper Chamber, indirect means of election adopted on party lines is a well-accepted practice.

(Paras 442 and 457)

Voting at elections to the Council of States cannot be compared with a general election. In a general election, the electors have to vote in a secret manner without fear that their votes would be disclosed to anyone or would result in victimisation. There is no party affiliation and hence the choice is entirely with the voter. This is not the case when elections are held to the Council of States as the electors are elected Members of the Legislative Assemblies who in turn have party affiliations. Section 24 of the Australian Constitution is quite similar to Article 80(4) and Section 30 of the Australian Constitution to Article 84 of our Constitution.

(Paras 441 and 444)

Judd v. Mckeon, (1926) 38 CLR 380; R. v. Jones, (1972) 128 CLR 221; United Democratic Movement v. President of the Republic of South Africa, (2003) 1 SA 495; R. v. Jones, (1972) 128 CLR 221, relied on

Fajgenbaum and Hanks: Australian Constitutional Law, (2nd Edn.), p. 51, relied on

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. Parliamentary democracy and multi-party system are an inherent part of the basic structure of the Indian Constitution. It is the political parties that set up candidates at an election who are predominantly elected as Members of the State Legislatures. The context in which general elections are held, secrecy of the vote is necessary in order to maintain the purity of the electoral system. Every voter has a right to vote in a free and fair manner and not disclose to any person how he has voted. But here the concern is with a voter who is elected on the ticket of a political party. In this view, the context entirely changes.

(Paras 451 and 452)

The procedure by which an election has to be held should further the object of a free and fair election. It has been noted by Parliament that in elections to the Council of States, members elected on behalf of the political parties misuse the secret ballot and cross-vote. It was reported that some members indulge in cross-voting for consideration. It is the duty of Parliament to take cognizance of such misbehaviour and misconduct and legislate remedial measures for the same. Breach of discipline of political parties for collateral and corrupt considerations removes the faith of the people in a multi-party democracy. Parliament, therefore, necessarily legislated to provide for an open ballot. A multi-party democracy is a necessary part of the basic structure of the Constitution. An amendment to law intended to restore popular faith in parliamentary democracy and in the multi-party system cannot be faulted.

(Para 462)

ZR. Constitution of India — Arts. 327, 328, 80 and Sch. VII List I Entry 72 — Rajya Sabha elections — Removal of secret ballot and introduction of open ballot system by amendment of relevant provisions of RP Act, 1951 — Legislative competence — Held, Parliament has legislative competence to enact the amending Act — Election — Representation of the People Act, 1951 — Ss. 3, 59, 94 and 128 (as amended by Act 40 of 2003) — Validity of

ZS. Constitution of India — Art. 245 — Validity of statute — Other grounds on which may be challenged — Wisdom of legislation — Held, a challenge to legislation cannot be decided on the basis of there being another view which may be more reasonable or acceptable

The legislative amendment cannot be struck down on the ground that a different or better view is possible. It is well settled that a challenge to legislation cannot be decided on the basis of there being another view which may be more reasonable or acceptable. A matter within the legislative competence of the legislature has to be left to the discretion and wisdom of the latter so long as it does not infringe any constitutional provision or violate the fundamental rights. The amendments in Sections 3, 59, 94 and 128 of the Representation of the People Act, 1951 by the Representation of the People (Amendment) Act, 2003 (40 of 2003) has been made in exercise of the powers conferred on Parliament under Article 246 read with Articles 84 and 327 and Schedule VII List I Entry 72. The impugned amendment does not infringe any constitutional provision. It cannot be found to be violative of the fundamental rights in Part III of the Constitution. It is not disputed that Parliament has legislative competence to enact the amending Act. In these facts and circumstances, the impugned legislation cannot be struck down as unconstitutional.

(Paras 463 and, 466 to 468)

ZT. Election — Representation of the People Act, 1951 — Ss. 59, 94 and 128 (as amended by Act 40 of 2003) — Cumulative effect of, held, is that Rajya Sabha elections are now to be held by “open ballot” — Working of scheme of “open ballot” r/w R. 39-AA, Conduct of Elections Rules, 1961, explained in detail — Held, by said amendments the right to vote in Rajya Sabha elections is not taken away — Each elected MLA of State concerned is fully entitled to vote in Rajya Sabha elections — Only change is every MLA belonging to a party has to disclose the way he has cast the vote to the authorised representative of his party (“authorised agent”), and to no one else — Only such MLAs as are members of a political party are bound to disclose the above and not all MLAs across the board — Prerogative remains with the voting MLA to choose as to whether or not to show his vote — Voting MLA may refuse to show his vote to the authorised agent, but in such an event he forfeits his right to vote — There is therefore a compulsion on a voting party MLA to show his vote — However, if a party MLA casts a vote in favour of any person he thinks appropriate and shows his vote to the authorised agent, the Rules do not contemplate cancellation of such a vote — Further, an elected MLA would not face any disqualification from the membership of the House for voting in a particular manner — He may at the most attract action from the political party to which he belongs — Conduct of Elections Rules, 1961 — R. 39-AA — Working of, explained

ZU. Constitution of India — Arts. 19(1)(a) & (2), 80, 118, 89 and 93 — Rajya Sabha elections — Removal of secret ballot and introduction of open ballot system — If has affected freedom of expression of voting MLAs — Held, such is not the case since, firstly, it is only if a voting MLA refuses to show his vote to the authorised representative of his party that he forfeits his right to vote — However, if he casts a vote in favour of any person he thinks appropriate and shows his vote to the authorised agent, the Rules do not contemplate cancellation of such a vote — Secondly, an elected MLA would not face any disqualification from the membership of the House for voting in a particular manner — He may at the most attract action from the political party to which he belongs — Further, since impugned amendment was brought to prevent cross-voting and wipe out evils of corruption and maintain integrity of democratic set-up, it can also be justified as a reasonable restriction under Art. 19(2) — Lastly, every vote on a motion inside the House is by open ballot, and so is election of Speaker, Deputy Speaker of Lok Sabha and Deputy Chairperson of Rajya Sabha — Hence impugned amendment cannot be faulted — Election — Representation of the People Act, 1951 — Ss. 59, 94 and 128 (as amended by Act 40 of 2003) — Rules of Procedure and Conduct of Business in Lok Sabha — Rr. 7, 8, 364, 365, 367, 367-A, 367-AA and 367-B — Rules of Procedure and Conduct of Business in Rajya Sabha — Rr. 7 and 252 to 254

The cumulative effect of the amendments to Sections 59, 94 and 128 of the RP Act, 1951 brought about by Act 40 of 2003 is that the elections for filling up a seat in the Council of States are now to be held by “open ballot”. The requirement of maintenance of secrecy of voting is now made subject to an exception mentioned in the provisos to Sections 59, 94 and 128 inserted by the impugned amendment.

(Para 329)

The norm prior to the impugned amendment was that the voting shall be by a secret ballot, in which all concerned, including the electors were expected to preserve the sanctity of the vote by keeping it secret. The privilege to keep the vote secret is that of the elector who may choose otherwise; that is to say, he may opt to disclose the manner in which he has cast his vote but he cannot be compelled to disclose the manner in which he has done so, except in accordance with the law on the subject which ordinarily comes into play only in case the election is challenged by way of election petition before the High Court. In the case of election to the Council of States, in the post-amendment scenario, the norm has undergone a change, in that the political party to which a particular Member of the Legislative Assembly of the State belongs is entitled to ascertain through a formally appointed authorised agent deputed at the polling station the manner in which the Member in question, who is an elector for such purposes, has exercised his franchise. The exception applies only to such Members of the Legislative Assembly, as are members of a political party and not to all members across the board. The voter at such an election may refuse to show his vote to the authorised agent of his political party, but in such an event he forfeits his right to vote, which in terms of Rule 39-AA of the Conduct of Elections Rules, 1961 inserted through S.O 272 (E) dated 27-2-2004 is cancelled by the presiding officer of the polling station on account of violation of the election procedure. There is, therefore, a compulsion on the voter to show his vote.

(Paras 438, 439 and 435)

The above Rules are only in furtherance of the object sought to be achieved by the impugned amendment. Rather, the Rules show, the open ballot system put in position does not mean open to one and all. It is only the authorised agent of the political party who is allowed to see and verify as to whom such an elector casts his vote. The prerogative remains with the voter to choose as to whether or not to show his vote to the authorised agent of his party.

(Para 440)

By the amendment that is impugned herein the right to vote is not taken away. Each elected Member of the Legislative Assembly of the State concerned 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. The question of denial of right to vote would be self-inflicted only on the Member of the Legislative Assembly declining to show his vote to the authorised representative of the party (as per the said Rule 39-AA). If an MLA casts a vote in favour of any person he thinks appropriate and shows his vote to the authorised representative of the political party to which he belongs, the Rules do not contemplate cancellation of such a vote. 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. The Supreme Court has held that secrecy of ballot and purity of elections should normally coexist. But in the case of the Council of States, 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.

(Paras 461 and 450)

The contention that the right of expression of the voter at an election for the Council of States is affected by open ballot is not tenable, as an elected MLA would not face any disqualification from the membership of the House for voting in a particular manner. He may at the most attract action from the political party to which he belongs. Being a member of the political party on whose ticket he was elected as an MLA, in the first place, he is generally expected to follow the directions of the party, which is one of the basic political units in our democracy.

(Para 458)

Under Article 143, Constitution of India, Re (Special Reference No. 1 of 1964), (1965) 1 SCR 413 : AIR 1965 SC 745; Tej Kiran Jain v. N. Sanjiva Reddy, (1970) 2 SCC 272 : (1971) 1 SCR 612, cited

Since the amendment has been brought in on the basis of the need to avoid cross-voting and wipe out evils of corruption as also to maintain the integrity of our democratic set-up, it can also be justified by the State as a reasonable restriction under Article 19(2) of the Constitution, on the assumption that voting in such an election amounts to freedom of expression under Article 19(1)(a) of the Constitution.

(Para 459)

Further, every vote on a motion inside the House is by an open ballot. The election of a Speaker, Deputy Speaker of the House of the People and the Deputy Chairperson of the Council of States is by a division which is a system of open ballot. Reference may be made in this respect to Rules 7, 8, 364, 365, 367, 367-A, 367-AA and 367-B of the Rules of Procedure and the Conduct of Business in the Lok Sabha and Rules 7, 252, 253 and 254 of the Rules of Procedure and Conduct of Business in the Council of States.

(Para 455)

In the above view, the justification of the impugned amendment on the reasoning that open voting eradicates the evil of cross-voting by electors who have been elected to the Assembly of the particular State on the basis of party nomination cannot be lightly brushed aside.

(Para 456)

ZV. Constitution of India — Art. 80 and Sch. X — Election to Rajya Sabha by open ballot — Voting by party MLA against party whip in — Disqualification under Sch. X — Held, the same does not lead to disqualification under Sch. X — At the most it may attract action from the political party to which he belongs — Kihoto Hollohan case, 1992 Supp (2) SCC 651, applied — Moreover, being a member of the political party on whose ticket he was elected as an MLA, he is generally expected to follow the directions of the party — Election — Representation of the People Act, 1951 — Ss. 59, 94 & 128 (as amended by Act 40 of 2003) and 29-A to 29-C — Election — Conduct of Elections Rules, 1961 — Form 2-B — Declaration in — Effect of — Election — Political parties — Importance of and adherence to party discipline, discussed

As per Kihoto Hollohan case, 1992 Supp (2) SCC 651:

“[W]hile construing para 2(1)(b) of Schedule X to the Constitution it cannot be ignored that under the Constitution Members of Parliament as well as of the State Legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the Constitution and the rules and standing orders regulating the procedure of the House [Article 105(1) and Article 194(1)]. The disqualification imposed by para 2(1)(b) must be so construed as not to unduly impinge on the said freedom of speech of a Member. This would be possible if para 2(1)(b) is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule, namely, to curb the evil or mischief of political defections motivated by the lure of office or other similar considerations. The said object would be achieved if the disqualification incurred on the ground of voting or abstaining from voting by a Member is confined to cases where a change of Government is likely to be brought about or is prevented, as the case may be, as a result of such voting or abstinence or when such voting or abstinence is on a matter which was a major policy and programme on which the political party to which the Member belongs went to the polls. For this purpose the direction given by the political party to a Member belonging to it, the violation of which may entail disqualification under para 2(1)(b), would have to be limited to a vote on motion of confidence or no confidence in the Government or where the motion under consideration relates to a matter which was an integral policy and programme of the political party on the basis of which it approached the electorate. The voting or abstinence from voting by a Member against the direction by the political party on such a motion would amount to disapproval of the programme on the basis of which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate.”

(Para 384)

The nomination papers prescribed under the Conduct of Election Rules, 1961 for election to the Council of States, being Form 2-C, or for election to the State Legislative Assembly, being Form 2-B, each of which require a declaration to be made by the candidate as to particulars of the political party that has set him up in the election. This declaration binds the elected legislators in the matter of allegiance to the political party in all matters including the support of the party to a particular candidate in election to the Council of States. Yet, in view of the law laid down in Kihoto Hollohan, 1992 Supp (2) SCC 651, it is not correct to contend that the open ballot system tends to expose the Members of the Legislative Assembly to disqualification under the Tenth Schedule since that part of the Constitution is meant for different purposes.

(Para 385)

An elected MLA would not face any disqualification from the membership of the House for voting in a particular manner. He may at the most attract action from the political party to which he belongs. It is not without significance that, barring the exception in case of Independents, which are few and far between, experience has shown that it is the political parties that mostly set up the Members of Legislatures at the Centre or in the States. The party system is well recognised in the Indian context. Sections 29-A to 29-C of the RP Act, 1951 speak of registration of political parties and some of their privileges and obligations. Schedule X to the Constitution recognises the importance of the political parties in our democratic set-up, especially when dealing with Members of the Houses of Parliament and the Legislative Assemblies or Councils. Being a member of the political party on whose ticket he was elected as an MLA, in the first place, he is generally expected to follow the directions of the party, which is one of the basic political units in our democracy.

(Paras 458, 385, 379 and 382)

Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, applied

S.R Bommai v. Union of India, (1994) 3 SCC 1 : AIR 1994 SC 1918; Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, relied on

ZW. Constitution of India — Arts. 194 and 80 — Rajya Sabha elections by open ballot — Voting by elected MLAs in — Privilege of freedom of expression without fear of legal consequences under Art. 194(2) — Availability of — Held, Rajya Sabha elections under Article 80 are not proceedings of “House of the Legislature of the State” under Art. 194 — Not the entire Legislative Assembly becomes electoral college under Art. 80, but only specified category of MLAs — While voting in Rajya Sabha elections such MLAs do not discharge functions assigned under Constitution to Legislative Assembly — Their participation in the election is only on account of their ex-officio capacity of voters for the election — Hence, act of casting votes by them, which also need not occur with all of them present together or at the same time, is merely exercise of franchise and not proceedings of the legislature — Hence said privilege is not available

(Paras 372 and 373)

ZX. International Law — International conventions — Actionability in municipal law — International conventions regarding election of governments by secret ballot — Applicability — Held, international covenants and declarations adopted by United Nations have to be respected by all signatory States and the meaning given to them has to be such as would help in effective implementation of the rights declared therein — Requirement of Art. 21 of Universal Declaration of Human Rights is satisfied not necessarily by secret ballot but even “by equivalent free voting procedures” — In any case, in present case the law on the subject as settled in India is clear enough as to render it not necessary to look elsewhere to deal with issues raised — Further, in case of conflict, municipal laws have to prevail — Universal Declaration of Human Rights — Art. 21 — International Convention on Civil and Political Rights — Art. 25 — Election — Representation of the People Act, 1951 — Ss. 59, 94 & 128 (as amended by Act 40 of 2003)

(Paras 394, 388 to 390 and 396)

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360; People's Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301; Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 : 1993 SCC (Cri) 527; State of W.B v. Kesoram Industries Ltd., (2004) 10 SCC 201 : AIR 2005 SC 1646, cited

ZY. Constitutional Law — Basic Structure of Constitution — Elements of — Democracy and free and fair elections — Held, democracy is a basic feature of Constitution, one that is not amenable to power of amendment of Parliament under the Constitution — It has also been the consistent view of Supreme Court that the edifice of democracy in this country rests on a system of free and fair elections — Constitution of India — Arts. 368, preamble, 327, 328 and Sch. VII List I Entry 72 — Election — Generally

(Paras 332 and 347)

ZZ. Constitution of India — Preamble — Nature of — Held, is a part of the Constitution

(Para 332)

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1; Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405; S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, 1980 Supp SCC 53; Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, relied on

ZZA. Constitution of India — Arts. 324, 327 and 328 — Power of Election Commission vis-à-vis Parliament — Held, when Parliament or any State Legislature has made valid law relating to or in connection with elections, Election Commission has to act in conformity with, not in violation of, such provisions

Where the law on the subject is silent, Article 324 is a reservoir of power for the Election Commission to act for the avowed purpose of pursuing the goal of a free and fair election, and in this view it also assumes the role of an adviser. But the power to make law under Article 327 vests in Parliament, which is supreme and so, not bound by such advice. The limitations on the exercise of plenary character of the Election Commission include one to the effect that when Parliament or any State Legislature has made valid law relating to or in connection with elections, the Commission, shall act in conformity with, not in violation of, such provisions.

(Para 427)

Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405, followed

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