Does the existence of a less restrictive alternative make a Rule unconstitutional?

No. The fact that an alternate means could subserve the same end would not make the Rule unconstitutional. The Rule does not prevent or foreclose the exercise of the right to vote but only regulates it, and the cancellation of the ballot follows only where the elector himself refuses to disclose it to the agent of his political party.

Conduct of Election Rules 1961 — r.39-AA — Representation of the People Act 1951 — s.33 — Constitution of India — Art.80(4) — Open ballot — Council of States — Cross-voting — Conduct of Election Rules 1961 — r.39-AA — Open ballot regulates, does not remove, the vote — Held: The open ballot in elections to the Council of States does not take away the right to vote but regulates it to eliminate cross-voting; only an elector who refuses to show the marked ballot to his party’s authorised agent forfeits the vote. (¶11, 13) Constitutional challenge — Availability of a less restrictive alternative — Held further: That an alternate means could subserve the same end does not make a Rule unconstitutional. The Rule does not foreclose the exercise of the right to vote; cancellation follows only the elector’s own refusal to disclose. (¶16) Representation of the People Act 1951 — s.33 proviso — Ten proposers for a non-party candidate — Held further: The requirement that a candidate not set up by a recognised political party be proposed by ten electors lies purely in the realm of legislative policy and is not per se discriminatory. Petition dismissed. (¶19, 20)

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