Does the open ballot in Council of States elections take away an elector’s right to vote?

No. By the amendment the right to vote is not taken away — each elected Member of the Legislative Assembly is fully entitled to vote in the election to the Council of States, and the only change is that he has to disclose the way he has cast the vote to the representative of his Party. It is only a voter who refuses to show the ballot to the authorised agent of his political party who forfeits the right to vote.

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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