Supreme Court rejects challenge to open ballot system for elections to Rajya Sabha

Distinguishing the elections to the Lok Sabha from those to the Rajya Sabha, a three-judge bench of the court upheld the manner in which elections are conducted in Rajya Sabha, on the grounds of preventing cross-voting and maintaining party discipline.

ON March 27, a three-judge bench of the Supreme Court rejected a petition filed by Lok Prahari, a society registered under the Societies Registration Act, 1860, challenging the open ballot system for elections to the Rajya Sabha.

Citing a decision of a constitution bench of the court in Kuldip Nayar versus Union of India (2006), a three-judge bench headed by Chief Justice of India (CJI) Dr D.Y. Chandrachud and comprising Justices P.S. Narasimha and J.B. Pardiwala reiterated that the underlying basis of the change in the norm, that is, from secret ballot to an open ballot, was necessitated to prevent cross-voting and the flouting of party discipline.

The petitioner, in particular, challenged Rule 39AA (information regarding casting of votes) of the Conduct of Election Rules, 1961 and the first proviso to Section 33(1) of the Representation of the People Act, 1951 (RP Act).


For 50 years after the enactment of the RP Act, 1951, elections to both the Rajya Sabha and the Vidhan Parishads were conducted by secret ballot. However, by the Representation of the People (Amendment) Act, 2003, Sections 59 (manner of voting at elections), 94 (secrecy of voting not to be infringed) and 128(1) (maintenance of secrecy of voting) of the RP Act were amended so as to provide for an open ballot system for elections to the Rajya Sabha. Rule 39AA was also accordingly inserted into the 1961 Rules by a notification dated February 27, 2004.

Rule 39AA stipulates that when an elector who is a member of a political party records their vote on a ballot paper, they must allow the authorised agent of that party to verify as to whom such an elector has cast their vote for 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 their 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 (maintenance of secrecy of voting by electors within polling station and voting procedure), as if the ballot paper had been taken back under sub-rule (5) of that Rule.

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.

Petitioner’s contention

S.N. Shukla, who is the General Secretary of Lok Prahari, argued in person. He contended that the consequence of Rule 39AA is that the elector would lose the right to vote under Article 80(4) of the Constitution if they don’t follow the Rule. Article 80(4) provides that the representatives of each state in the Rajya Sabha 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.

During the course of the hearing, Shukla contended that the said Rule should be read down and reinterpreted so as to provide for that in the event an elector does not show their ballot to the agent of the political party, the presiding officer would disclose the same to the agent. Further, according to Shukla, this would not cause any loss of their right to vote per se.


Rejecting Shukla’s argument, the judgment, authored by Chief Justice Dr Chandcrachud, extensively relied upon Kuldip Nayar, which held that the open ballot system “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 Constitution bench also held that in a Lok Sabha 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 they have voted. However, the concept of “constituency-based representation” in a general election is distinct from “proportional representation”, which is the case with the Rajya Sabha.

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 judgment underlined with reference to Kuldip Nayar.

The court also rejected Shukla’s argument to read down Rule 39AA in the manner he sought to suggest. It held that, “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 [in Kuldip Nayar] 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.

It also rejected the challenge to the first proviso to Section 33(1) of the RP Act. The proviso stipulates that a candidate who is not set up by a recognised 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.

The Bench held that this was purely in the realm of legislative policy, adding that there was nothing per se discriminatory in the provision.

The Parliament is entitled to regulate the manner in which nomination papers should be presented and the requirements for a valid nomination,” the Bench concluded.

Click here to view the Supreme Court’s full judgment.