LOK PRAHARI versus UNION OF INDIA & ORS

Citation: [2023] 7 S.C.R. 357 · Decided: 27-03-2023 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Dismissed

Judgment (excerpt)

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LOK PRAHARI
v.
UNION OF INDIA & ORS
(Writ Petition (Civil) No. 1141 of 2020)
MARCH 27, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI,
PAMIDIGHANTAM SRI NARASIMHA AND
J. B. PARDIWALA, JJ.]
Conduct of Election Rules, 1961 – Rule 39-AA –
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
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secret ballot has been replaced by open ballot – The Constitution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
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
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
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.
[2023] 7 S.C.R. 357
357
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SUPREME COURT REPORTS
[2023] 7 S.C.R.
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
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
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
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
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
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. [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
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nominated for election unless the nomination paper is subscribed
by ten proposers who are electors 

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