The Rajya Sabha election in Gujarat highlighted the procedural matrix of the ‘open ballot’ system under Rule 39AA of the Conduct of Election Rules of 1961. This says that a voter may show his/her marked ballot paper to the authorised representative of his/her political party before dropping it into the ballot box. The question of law which cropped up was whether this kind of an ‘open’ election process had any secrecy of vote involved at all. Is it a violation of secrecy if a voter shows his/her marked vote to anyone other than the authorised representative concerned?
‘Instructions to the voters for casting vote in the Rajya Sabha elections’, an official communication dated August 1 sent by the Assistant Election Officer and Deputy Secretary of the Gujarat Legislative Assembly to the MLAs, confirms that their votes, even though cast in an open ballot system, are secret.
On four separate occasions, the instructions invoke Rule 39AA to remind the MLAs that their marked votes are to be shown only to the authorised representative of their political party before being dropped into the ballot box, and any transgression will amount to their votes being declared invalid.
In its order on the controversy, the Election Commission of India deals with the contention that there is nothing secret in the open ballot system.
“The provision of open voting at Rajya Sabha elections does not mean that the principle of secrecy of vote has been given a complete go bye and that the ballot paper of an elector can be shown to, or be seen by, any person present in the place of poll,” the EC interpreted Rule 39AA.
The five-judge Constitution Bench of the Supreme Court in the Kuldip Nayar case (2006) upheld the open ballot system, holding that it was “essential as electors were resorting to cross voting under the garb of conscience voting, flouting party discipline in the name of secrecy of voting”.
In its order, the EC has observed that Rule 39AA “is very clear that the elector has to show his ballot paper only to the authorised representative of his party and to no one else”. It said that in case of independent MLAs, they do not have to show their votes to “anyone at all”.
However, Rule 39AA is silent on who would be the authorised representative for a rebel MLA. Is it still the authorised agent of the party he/she has rebelled against or is it the representative of the political party he/she has voted for? Or does a rebel MLA enjoy the same status as that of an independent MLA?