Wasim Beg, Aditya Tewari
wasim.beg@gmail.com
The recently held Rajya Sabha elections in J&K and its aftermath has brought to the fore a combination of political and legal questions. While we do not intend to touch upon the political part of it, the idea behind this article is to highlight the legal aspect which throws-up an extremely thought provoking scenario – one where one is tempted to argue that the elections could possibly be invalid.
An RTI application filed under the Right to Information Act, 2009, and purported to have been answered by the Central Public Information Officer of the J&K Assembly Secretariat, claims that one of the parties with MLAs participating (as electors) in the election had not appointed any authorised agent in terms of the Conduct of election rules, 1961. This has led to the argument that some MLAs voted in the Rajya Sabha election without any party mechanism in place to verify their votes. Since Rule 39AA’s (of the Conduct of election rules, 1961) obligation to show the ballot paper to the authorized agent can only arise when such an agent is appointed, the MLAs in such a situation (whether actual or hypothetical) would have faced no such obligation and voted in effective secrecy.
The Rajya Sabha, unlike the Lok Sabha where members are elected directly by the people through a general election, is elected indirectly. Under Article 80(4) of the Constitution, representatives of each State in the Council of States (Rajya Sabha) are elected by the elected members of the Legislative Assembly of that State using the Single Transferable Vote. The process on polling day is straightforward, each MLA receives a ballot paper, marks their preference in a private voting compartment, and the votes are counted using the Single Transferable Vote method. A candidate needs a certain quota of votes to be elected, and votes in excess of the quota are transferred to the next preference.
By the early 2000s, cross-voting in Rajya Sabha elections had become an acknowledged problem. Allegations were flying thick and fast claiming MLAs were known to sell their votes to the highest bidder, with parties, and often candidates with significant personal wealth, inducing legislators to vote against their party’s direction. The secret ballot made this nearly impossible to detect or prove. In response, Parliament enacted the Representation of the People (Amendment) Act, 2003, which amended Sections 59, 94, and 128 of the Representation of the People Act, 1951, to essentially replace the secret ballot with an open ballot for elections to the Rajya Sabha.
Following this legislative change, the Election Commission inserted Rule 39AA into the Conduct of Elections Rules, 1961 by notification dated 27 February 2004. Rule 39AA, inserted into the Conduct of Elections Rules, 1961, operates in three layers. Sub-rule (1) requires the presiding officer to allow the party’s authorised agent to verify the MLA’s marked ballot before it enters the ballot box, and prescribes that a refusal to show the ballot results in the vote being cancelled. Sub-rule (2), reads as 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. Sub-rule (3) requires one of those two agents to be present throughout polling hours, with the second available to relieve the first.
In this regard, the framework of an ‘open ballot’ was tested twice before the Supreme Court. In Kuldip Nayar v. Union of India, a five-judge Constitution Bench examined whether the open ballot violated the Constitution. The Petitioner argued that the compulsion to show one’s vote to the party agent amounted to an unreasonable restriction on the elector’s freedom under Article 19(1)(a). The Bench rejected this unanimously, holding that Rajya Sabha elections, being indirect elections among elected party members, are fundamentally different from direct elections by the general public, and that the right to vote in such elections is a statutory right that Parliament can regulate. Transparency toward the party, the court held, serves the legitimate purpose of preventing corruption. In Lok Prahari v. Union of India, a bench comprising Chief Justice D.Y. Chandrachud, Justice P.S. Narasimha, and Justice J.B. Pardiwala was asked to reconsider that position. The petitioner argued that Rule 39AA amounted to undue influence under Section 123(2) of the Representation of the People Act, 1951. The court dismissed the petition on the ground that the open ballot was introduced specifically to prevent cross-voting and protect party discipline. It was also held that in proportional representation elections, voters are subject to party discipline unlike in direct general elections; and that the amendment does not take away the right to vote but merely regulates it by requiring disclosure to the party agent.
The authorised agent sits at the heart of how Rule 39AA is designed to work. The mechanism operates in three layers. Sub-rule (1) creates the verification obligation on the MLA. They must show their marked ballot to the party’s authorised agent before it enters the ballot box. Sub-rule (2) places the obligation to appoint two such agents squarely on the political party.
The consequence of an MLA’s non-compliance is express and immediate. Sub-rules (6) to (8) of Rule 39A, specify what happens: the presiding officer endorses the retrieved ballot with the words “Cancelled: voting procedure violated,” signs it, places it in a separate cover, and the vote is not counted. An MLA who refuses to show their vote loses their vote entirely. It is worth noting the contrast with independent MLAs, an independent legislator who votes in a Rajya Sabha election is expressly prohibited from showing their ballot to anyone. The logic is consistent: for party-affiliated MLAs, transparency toward the party is the safeguard; for independents, secrecy remains the norm.
Further, sub-rule (2) reflects this intent precisely with the use of the word “shall”. Although, the word “shall” alone does not settle whether a provision is mandatory or merely directory, what matters is the purpose the provision is meant to serve. If ignoring the provision would defeat that very purpose, the provision must be treated as mandatory as per settled law. Whether the provision is mandatory or directory, depends upon the intent of the legislature and not upon the language for which the intent is clothed.
The election in J&K stands concluded. But if the open ballot exists to ensure that Rajya Sabha election outcomes reflect the genuine will of political parties, and if a party’s failure to appoint an authorised agent meant that its MLAs voted in effective secrecy, with no verification possible, then the question is no longer merely about a procedural gap, it is about whether an election conducted under those conditions can be said to have fully complied with the statutory framework that governs it.
The amendments in the law, the Supreme Court pronouncements underlining and upholding the importance of an open ballot in such elections as well as Rule 39(AA) of the Conduct of Elections Rules, 1961 make the intent amply clear. The law says that such an election ‘shall’ be held by open ballot, then it goes-on to talk about an agent (party-wise) who ‘shall’ be appointed and allowed to take visual proof for every vote that the party’s members cast. Not only that, the law also provides for cancellation of a vote should the authorized agent not be shown the ballot paper. This leads to a rather clear conclusion – that in case of a political party, the law does not envisage a situation where an agent is not appointed and not only that, it also punishes a member who refuses to show the ballot to the authorized agent as the concept of an open ballot has been held to be of prime importance in such elections. Therefore, ‘not appointing an authorized agent’ can safely be deemed impermissible. It would be fair to expect the returning officer to confirm compliance, apprise all stake-holders as well as ensure that all requirements are met.
A situation where members of a political party vote without an agent in place can be no different from that of a member who refuses to show his ballot to the agent. Therefore, as in case of the elector who refuses to show the ballot to the party’s authorized agent, the ballot of members of a party with no authorized agent should also be invalid – the argument certainly does not lack potency.
The fascinating aspect of this argument does not end here, one is left to wonder whether an election where (arguably) the legal requirements were not fulfilled can be considered a valid election or not? One might be tempted to challenge it in a Court of law.
Wasim Beg is Founder & Managing Partner (Lectio Law Offices) Former Additional Advocate General (J&K), Aditya Tewari is Associate (Lectio Law Offices)
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