The story so far: Another round of Rajya Sabha elections has been completed. Polls to some seats were postponed in view of the situation caused by the novel coronavirus outbreak. All the 19 seats for which balloting was held had clear winners, but there was a hint of controversy about who ought to have been allowed to vote or barred from voting in Manipur . Such issues arise mainly due to the interpretation of rules and features peculiar to the Rajya Sabha elections. Cross-voting, breach of confidentiality by showing the ballot/vote to a person other than the member’s own party’s agent, and eligibility to vote under certain conditions are common grounds for objections to be raised. There are several features that distinguish elections to the Council of States, or the Upper House of Parliament, from the general elections.
What is peculiar to the Rajya Sabha polls as far as the electorate is concerned?
Only elected members of the State Legislative Assemblies can vote in a Rajya Sabha election. The legislators send a batch of new members to the Upper House every two years for a six-year term. A third of Members of Parliament in the Rajya Sabha (which is a permanent House and is not subject to dissolution), from each State retire once in two years and polls are held to fill up the vacancies. In addition, vacancies that arise due to resignation, death or disqualification are filled up through bypolls after which those elected serve out the remainder of their predecessors’ term.
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Voting is by single transferable vote, as the election is held on the principle of proportional representation. In other words, a bloc of MPs belonging to one or more parties can elect a member of their choice if they have the requisite numbers. This is to avoid the principle of majority, which would mean that only candidates put up by ruling parties in the respective States will be elected.
The Delhi and Puducherry Assemblies elect members to the Rajya Sabha to represent the two Union Territories.
What is the voting process?
Polling for a Rajya Sabha election will be held only if the number of candidates exceeds the number of vacancies. Since the strength of each party in the Assembly is known, it is not difficult to estimate the number of seats a party would win in the Rajya Sabha poll. For instance, if there are four seats to be filled up, and the ruling party and its allies command a two-thirds majority, and the Opposition a third, it will mean that the election will go three seats to one in favour of the ruling party. In many States, parties avoid a contest by fielding candidates only in respect to their strength. Where an extra candidate enters the fray, voting becomes necessary.
Candidates fielded by political parties have to be proposed by at least 10 members of the Assembly or 10% of the party’s strength in the House, whichever is less. For independents, there should be 10 proposers, all of whom should be members of the Assembly.
A single transferable vote means electors can vote for any number of candidates in order of their preference. A candidate requires a specified number of first preference votes to win. Each first choice vote has a value of 100 in the first round. To qualify, a candidate needs one point more than the quotient obtained by dividing the total value of the number of seats for which elections are taking place plus one. For instance, if there are four seats and 180 MLAs voting, the qualifying number will be 180/5= 36 votes or a value of 3,600. Normally, the results are clear after one round itself. The extra candidate is eliminated for want of enough first preference votes.
However, counting may go to the second round, if more than one candidate fails to get the specified number. In such a situation, the second preference polled by the candidates (in ballots where the first preference has gone to those already qualified) will be transferred to their kitty, but with a diminished value. The total value of the votes polled by the remaining candidates both as first and subsequent preferences would be used to decide the winner.
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Why do not the Rajya Sabha polls have a secret ballot?
The Rajya Sabha polls have a system of open ballot, but it is a limited form of openness. As a measure to check rampant cross-voting, which was taken to mean that the vote had been purchased by corrupt means, the system of each party MLA showing his or her marked ballots to the party’s authorised agent, before they are put into the ballot box, has been introduced. Showing a marked ballot to anyone other than one’s own party’s authorised agent will render the vote invalid. Not showing the ballot to the authorised agent will also mean that the vote cannot be counted. And independent candidates are barred from showing their ballots to anyone.
Why does not none of the above, or NOTA, apply to the Rajya Sabha polls?
The Election Commission of India (ECI) issued two circulars, on January 24, 2014 and November 12, 2015, giving Rajya Sabha members the option to press the NOTA button in the Upper House polls. However, in 2018, the Supreme Court of India struck down the provision , holding that the ‘none of the above’ option is only for general elections held on the basis of universal adult suffrage, and cannot be applied to indirect elections based on proportional representation.
Does cross-voting attract disqualification?
No. The Supreme Court, while declining to interfere with the open ballot system, ruled that not voting for the party candidate will not attract disqualification under the anti-defection law. As voters, MLAs retain their freedom to vote for a candidate of their choice. However, the Court observed that since the party would know who voted against its own candidate, it is free to take disciplinary action against the legislator concerned.
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Can a legislator vote without taking oath as a member of the Assembly?
While taking oath as a member is for anyone to function as a legislator, the Supreme Court has ruled that a member can vote in a Rajya Sabha election even before taking oath as legislator. It ruled that voting at the Rajya Sabha polls, being a non-legislative activity, can be performed without taking oath. A person becomes a member as soon as the list of elected members is notified by the ECI, it said. Further, a member can also propose a candidate before taking oath.
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