Era Sezhiyan

Removal of secret voting in Rajya Sabha elections is an onslaught on a free and fair electoral process. And the removal of residential qualification for candidates negates the constitutional purpose of the Council of States.

AN election is a decision-making process whereby people vote for preferred political candidates or parties to act as representatives in government. Hence, the electors should be free to vote without fear or intimidation. A secret ballot is a prerequisite for the free expression of the will of the citizen.

The Universal Declaration of Human Rights (1950) in Article 21.2 declared: "The will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures." Thus, the United Nations considered universal and equal suffrage and secret vote as part of fundamental human rights.

While the Universal Declaration of Human Rights was merely a statement of ideals, the general principle for free and fair elections was developed in the Covenant of Civil and Political Rights 1966. The Covenant in Article 25 states: "Every citizen shall have the right and the opportunity, without any of the distinctions, without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections, which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country."

The condition of a secret ballot is applicable not only in the direct elections to the legislatures, but also in the elections, direct or indirect, to the posts of President and Vice-President. The citizens have a right "to take part in the conduct of public affairs, directly or through representatives."

The Universal Declaration and the Covenant were not there before the Constituent Assembly during its deliberations (December 1946 to November 1949). Still, Dr. B.R. Ambedkar and others who were deeply committed to human rights had consciously guaranteed in the Indian Constitution most of the rights that were to be inscribed in the U.N. Documents.

The right to vote was firstly included as a fundamental right. The draft by K.M. Munshi stated: "Every citizen has the right to choose the Government and the legislators of the Union and his State on the footing of equality in accordance with the law of the Union or the unit, as the case may be, in free, secret and periodic elections." Later, the Advisory Committee on Fundamental Rights introduced a separate chapter in the Constitution for the Election Commission and the conduct of elections. However, the Constitution-framers kept in view the basic postulates of free and secret elections at every stage.

The elections of President and Vice-President under Articles 55 and 66 respectively are held in accordance with the principle of proportional representation by means of a single transferable vote and by secret ballot. The election laws also provide for secret voting in elections to Parliament and the State Legislatures.

It is regrettable that through an amendment in 2003, the National Democratic Alliance Government caused two basic changes in the Rajya Sabha election by introducing open ballot and displacing secret voting, and removing the residential qualification for the candidate.

Removal of secret voting is an outrageous onslaught on a free and fair electoral process, blatantly opposed to the U.N. Covenant. The open ballot makes a mockery of the democratic norms of free and fair elections. There is a fallacious defence that the open ballot will prevent corruption and cross-voting. If so, by the same logic, secret ballot could be removed in the elections to the office of President, Vice-President, and Members of Legislative Councils.

Even now, it is the practice of Members of each House of Parliament to elect from among themselves some to serve in Parliamentary Committees in accordance with the principle of proportional representation by means of the single transferable vote. These elections are conducted by secret ballot. Though a party whip may issue a list of candidates to be supported by the party members, there is no verification how the members have voted. Often times, a member put up by his party with allotment of sufficient votes may not be successful.

Elections are being held with secret ballot in respect of such important Parliamentary Committees as Public Accounts Committee, Estimates Committee, Public Undertaking Committee, Committee on Welfare of Scheduled Castes and Scheduled Tribes, and Joint Committee on Offices of Profit. Apart from the Parliamentary Committees, there are several bodies in which the Lok Sabha and the Rajya Sabha are represented. There also the elections are held for several bodies under proportional representation and secret ballot.

When you can trust the elected Members of State Assemblies with secret voting in the election of the President, it is beyond comprehension why the secret ballot is removed only in the election to the Rajya Sabha. Instead of making the election to the Rajya Sabha a farce, it is better to give legal power to party presidents to nominate straightaway Members to the Rajya Sabha in proportion to the strength of their party in the Assembly concerned.

Germany has the `list system.' There, each voter casts two votes, a first vote for a constituency candidate and a second vote for a party list. Half of the number of Members of the Lower House (Bundestag) are elected by the first-past-the-post system and the second half of Members are nominated in proportion to the votes obtained by each party in the order of the names given in the list of the party. The rank of a candidate in the list of the party determines his accession to a parliamentary seat based on the seats obtained for the party through the list. In order to participate in the proportional allocation of Bundestag seats, a party must receive a minimum of five per cent of valid second votes or win three constituencies. The party credibility will be irrecoverably lost if its list includes persons with notorious records of criminalities and corruption.

Further, the Members of the German Parliament are in no way bound by the orders of the party leader in their voting in the House. Article 38 of the Basic Law states: "Members of the German Bundestag shall be elected in general, direct, free, equal, and secret elections. They shall be representatives of the whole people, not bound by orders or instructions, and responsible only to their conscience." In the United Kingdom and in the United States, the party leader has no power to compel the party members to act or vote in a certain manner in the House.

The removal of residential qualification for candidates in the Rajya Sabha election negates the constitutional authority and purpose of the Council of States. There is a deceptive argument that it is all right as the candidate from outside the State gets the support of the elected representatives of the State itself in the election. Then, you can extend the same logic for candidates outside the State to contest elections to the Assembly, the Legislative Council, or Panchayat institutions. Will it not be absurd to allow non-citizens who have the support of local voters to contest and win elections to the legislatures of Nagaland or Jammu and Kashmir?

The amendments to the Election Law as they stand now militate against democratic character and federalism, which are the basic features of the Indian Constitution. In the Bommai case (AIR 1994 SC 1918), the Supreme Court declared: "Democracy and federalism are essential features of the Constitution and are part of its basic structure. Any interpretation that we may place on Article 356 must, therefore help to preserve and not subvert the fabric... This can be done by the courts while confining themselves to the acknowledged parameters of judicial review as discussed above viz., illegality, irrationality and mala fides. Such scrutiny of the material will also be within the judicially discoverable and manageable standards." (Para 64)

Further in that case, the Supreme Court observed: "The above discussion thus shows that the States have an independent constitutional existence and they have as important role to play in the political, social, educational and cultural life of the people as the Union. They are neither satellites nor agents of the Centre." (Para 66)

Rule by a party president under election law may be more dangerous to federalism and democracy than by an unwarranted imposition of President's Rule under Article 356.

The Council of States consists of 12 Members to be nominated by the President and not more than 238 representatives elected by the elected members of the State Assemblies. If an election to the Rajya Sabha with open ballot were to be continued for another four years, the House will be full of nominees of the President of India or of presidents of political parties. In short, the Council of States will become a Council of Nominees.