The story so far: The Rajya Sabha elections in the States of Uttar Pradesh, Himachal Pradesh and Karnataka witnessed cross-voting by MLAs belonging to different parties. This has once again raised concerns about the sanctity of the election process.
How are Rajya Sabha elections held?
As per Article 80 of the Constitution, representatives of each State to the Rajya Sabha are elected indirectly by the elected members of their Legislative Assembly. The polls for Rajya Sabha will be required only if the number of candidates exceed the number of vacancies. In fact, till 1998, the outcome of Rajya Sabha elections were usually a foregone conclusion. The candidates nominated by various parties, according to their strength in the Assembly, used to be elected unopposed. However, the June 1998 Rajya Sabha elections in Maharashtra witnessed cross-voting that resulted in the loss of a Congress party candidate.
In order to rein in the MLAs from such cross-voting, an amendment to the Representation of the People Act, 1951 was carried out in 2003. Section 59 of the Act was amended to provide that the voting in elections to Rajya Sabha shall be through an open ballot. The MLAs of political parties are required to show their ballot paper to the authorised agent of their Party. Not showing the ballot paper to the authorised agent or showing it to anyone else will disqualify the vote. Independent MLAs are barred from showing their ballots to anyone.
What does the Tenth Schedule state?
The 52nd constitutional amendment introduced the ‘anti-defection’ law through the Tenth Schedule in 1985. This Schedule provides that a member of a House of Parliament or State legislature who voluntarily gives up the membership of their political party or votes against the instructions of their party in a House are liable for disqualification from such House. This instruction with respect to voting is issued by the ‘whip’ of a party.
However, the elections to Rajya Sabha are not treated as a proceeding within the Legislative Assembly. The Election Commission, drawing reference to Supreme Court judgments, had issued a clarification in July 2017. It specified that the provisions of the Tenth Schedule, with respect to voting against the instruction of the party, will not be applicable for a Rajya Sabha election. Furthermore, political parties cannot issue any ‘whip’ to its members for such elections.
What have the courts ruled?
The Supreme Court in Kuldip Nayar versus Union of India (2006), upheld the system of open ballot for Rajya Sabha elections. It reasoned that if secrecy becomes a source for corruption, then transparency has the capacity to remove it. However, in the same case the court held that an elected MLA of a political party would not face disqualification under the Tenth Schedule for voting against their party candidate. He/she may at the most attract disciplinary action from their political party. The Supreme Court has also held in Ravi S. Naik and Sanjay Bandekar versus Union of India (1994), that voluntarily giving up membership under the Tenth Schedule is not synonymous with only formally resigning from the party to which the member belongs. The conduct of a member both inside and outside the house can be looked into to infer if it qualifies as voluntarily giving up membership.
It may be noted that the six Congress MLAs, who cross-voted in Himachal Pradesh, have been disqualified under the Tenth Schedule for defying the party whip and being absent during the passage of the Budget in the Assembly.
What can be the way forward?
It is to uphold the higher principle of free and fair elections and its purity that the court upheld the system of open ballot to Rajya Sabha elections. However, the instances of cross-voting in the last decade have defeated the intent behind this procedure. It would be wishful thinking to expect any further amendments to strengthen the Constitution or laws against such voting practices since ruling parties’ benefit from such unprincipled tactics.
The Supreme Court nevertheless in the case relating to the Chandigarh Mayoral election had observed that it will not allow democracy to be murdered. Cross-voting in Rajya Sabha elections is a serious threat to democracy. The court may therefore initiate a suo moto Public Interest Litigation in this matter or take it up when the order by the Himachal Pradesh Speaker disqualifying the six MLAs eventually comes up before it on appeal. It may, in that process, review its own order in the Kuldip Nayar case in light of its judgment in the Ravi Naik case.
Voting by an MLA against his/her political party in a Rajya Sabha election may well be construed as a strong reason to infer that the member had voluntarily given up membership of such party. If the court decides so, this would be a valid ground for disqualification under the Tenth Schedule. It would hopefully act as a deterrent against such cross-voting in the future.
Rangarajan R is a former IAS officer and author of ‘Polity Simplified’. He currently trains civil-service aspirants at ‘Officers IAS Academy’. Views expressed are personal.
