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Lok Prahari vs Union of India & Ors.

Writ Petition (Civil) · 2023 INSC 302Decided 27 Mar 2023
Writ Petition (Civil) No. 1141 of 2020
Dr. Dhananjaya Y. Chandrachud · Pamidighantam Sri Narasimha · J.B. Pardiwala

Background

Lok Prahari, a registered society, filed a writ petition challenging two provisions relating to elections to the Rajya Sabha (Council of States) and Legislative Councils: Rule 39-AA of the Conduct of Election Rules, 1961 (which requires a Member of the Legislative Assembly, when voting in these indirect elections, to show his marked ballot to an authorised agent of his own political party, failing which the vote is cancelled) and a proviso to Section 33 of the Representation of the People Act, 1951 (which requires an independent candidate, not backed by a recognised party, to have ten proposers rather than one). The petitioner argued the open-ballot rule effectively takes away a legislator's constitutional right to vote and asked, at minimum, that the rule be "read down."

Decision Breakdown

The Supreme Court held itself bound by an earlier five-judge Constitution Bench ruling (Kuldip Nayar vs Union of India, 2006) which had already upheld the open-ballot system for Rajya Sabha and Legislative Council elections, explaining that it does not extinguish the right to vote but merely regulates it to prevent cross-voting and preserve party discipline in these "proportional representation" elections, as opposed to ordinary general elections where secrecy of the ballot is essential. The Court rejected the petitioner's proposal to reinterpret the rule (i.e., that the Presiding Officer should disclose an uncooperative voter's ballot to the party agent instead of cancelling it), finding no constitutional infirmity in cancelling the vote of an MLA who refuses to show it. On the second challenge, the Court held that requiring ten proposers for a non-party-backed candidate is a matter of legislative policy that is not discriminatory. Both challenges failed, and the writ petition was dismissed.

Lesson Learnt

Not every election-related rule that limits secrecy of the ballot is unconstitutional. Where the legislature has designed a special voting mechanism (like the open ballot for indirect elections to prevent cross-voting and preserve party discipline), courts will uphold it as a reasonable regulation of the right to vote rather than a violation of it, especially once a Constitution Bench has already settled the point.

Official source (sci.gov.in)View Judgment (PDF)

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