LOK PRAHARIversusUNION OF INDIA & ORS

                        [2023] 7 S.C.R. 357                              357


                          LOK PRAHARI                                    A
                                  v.
                    UNION OF INDIA & ORS
               (Writ Petition (Civil) No. 1141 of 2020)
                         MARCH 27, 2023                                  B
        [DR. DHANANJAYA Y CHANDRACHUD, CJI,
         PAMIDIGHANTAM SRI NARASIMHA AND
                 J. B. PARDIWALA, JJ.]
       Conduct of Election Rules, 1961 – Rule 39-AA –
                                                                         C
Representation of the People Act, 1951 – ss. 59, 94 and 128(1),
amended by Act of 2003 – Challenge to r. 39-AA – Petitioner has
challenged the constitutional validity of rule 39-AA on the ground
that the said rule violates Art. 80(4), Art.14 of the Constitution and
is also contrary to s.123 of the Representation of the People Act,
1951 – Held: The Constitution Bench in Kuldip Nayar v. Union of          D
India 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secret ballot has been replaced by open ballot – The Constitution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 then held that the open ballot    E
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       F
cross-voting and the flouting of party discipline – Therefore, the
challenge 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 is
not set up by a recognized political party shall not be deemed to be     G
duly nominated for election unless the nomination paper is
subscribed by ten proposers who are electors of the constituency –
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.                             H
                                 357
358            SUPREME COURT REPORTS                       [2023] 7 S.C.R.


A           Dismissing the writ petition, the Court
            HELD: Rule 39-AA of the Conduct of Election Rules 1961
             1. 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
B     Nayar v Union of India . 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
C     ballot to the authorised agent of his political party, who forfeits
      the right to vote. 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
D     in 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 electoral
E     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
F     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
G     State 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 up
      by a recognized political party shall not be deemed to be duly
H
                LOK PRAHARI v. UNION OF INDIA & ORS                             359


nominated for election unless the nomination paper is subscribed                A
by ten proposers who are electors of the constituency. 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. [Paras 18 and 19][365-
                                                                                B
D-E]
         Kuldip Nayar v Union of India [2006] 5 Suppl. SCR 1
         – relied on.
                             Case Law Reference
[2006] 5 Suppl. SCR 1                   relied on              Para 11          C

      CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
1141 of 2020.
         (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
         S. N. Shukla, Petitioner-in-person                                     D
      K M Nataraj, A.S.G., Ardhendumauli Kumar Prashad, A.A.G.,
Rajat Nair, Shailesh Madiyal, Ms. Shraddha Desmukh, Ms. Ruchi Gour
Narula, Arvind Kumar Sharma, Amit Sharma, Dipesh Sinha, Ms. Pallavi
Barua, Ms. Sakshi Upadhyaya, Ms. Aparna Singh, Adarsh Upadhyay,
Ashish Madaan, Ms. Shreya Srivastava, Aman Pathak, Ms. Pallavi                  E
Kumari, Ms. Ananya Sahu, Advs. for the Respondents.
         The Judgment of the Court was delivered by
         DR. DHANANJAYA Y CHANDRACHUD, CJI
       1. The jurisdiction of this Court under Article 32 of the Constitution   F
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       G
         (ii)      The proviso to Section 33 of the Representation of the
                   People Act 19512.

1
    “1961 Rules”
2
    “1951 Act”                                                                  H
360                 SUPREME COURT REPORTS                        [2023] 7 S.C.R.


A            2. Article 80 of the Constitution provides for the composition of
      the Council of 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 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
B
      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
C     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
D     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
E     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:
F
                “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
G                      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

      3
H         clause (2) of Article 80
              LOK PRAHARI v. UNION OF INDIA & ORS                                  361
             [DR. DHANANJAYA Y CHANDRACHUD, CJI]

                  agent of his political party, the ballot paper issued to him     A
                  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
                                                                                   B
                  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           C
                  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        D
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             E
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          F
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
                                                                                   G
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).
                                                                                   H
362                  SUPREME COURT REPORTS                         [2023] 7 S.C.R.


A              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.
B
               (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”.

C              (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
D     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.
E            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
F     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
G                    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
      4
H         (2006) 7 SCC 1
           LOK PRAHARI v. UNION OF INDIA & ORS                                 363
          [DR. DHANANJAYA Y CHANDRACHUD, CJI]

             be cancelled by the Presiding Officer on the ground that          A
             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       B
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     C
            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
                                                                               D
            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.”
                                                                               E
        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”,     F
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
                                                                               G
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
                                                                               H
364             SUPREME COURT REPORTS                            [2023] 7 S.C.R.


A                   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
B
                    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.”
C            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
D     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,
E     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
F     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
G     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:
H
              LOK PRAHARI v. UNION OF INDIA & ORS                                   365
             [DR. DHANANJAYA Y CHANDRACHUD, CJI]

       “33. Presentation of nomination paper and requirements for a                 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      B
               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       C
               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           D
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           E
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.                         F

Ankit Gyan                                               Writ petition dismissed.
(Assisted by : Mahendra Yadav, LCRA)


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