On cross-voting in Rajya Sabha elections

• The recent Rajya Sabha elections in Uttar Pradesh, Himachal Pradesh, and Karnataka have witnessed cross-voting by MLAs.
• This has once again raised concerns about the sanctity of the election process.

How Rajya Sabha Elections Are Conducted

• As per Article 80 of the Constitution, representatives of each State to the Rajya Sabha are elected indirectly by the elected members of their Legislative Assembly.
• The polls for Rajya Sabha will be required only if the number of candidates exceed the number of vacancies.
• Historically, these elections were often uncontested until the 1998 Maharashtra elections witnessed cross-voting.

Legal Provisions

• In order to rein in the MLAs from cross-voting, an amendment to the Representation of the People Act, 1951 was carried out in 2003.
• Section 59 of the Act was amended to provide that the voting in elections to Rajya Sabha shall be through an open ballot.
• The MLAs of political parties are required to show their ballot paper to the authorised agent of their Party.
• Not showing the ballot paper to the authorised agent or showing it to anyone else will disqualify the vote.
• Independent MLAs are barred from showing their ballots to anyone.

The Tenth Schedule

• The 52nd constitutional amendment introduced the ‘anti-defection’ law through the Tenth Schedule in 1985.
• However, it does not apply to Rajya Sabha elections, as clarified by the Election Commission in 2017.
• The Supreme Court ruled that voting against one's party candidate does not warrant disqualification under the Tenth Schedule.
• Furthermore, political parties cannot issue any whip to its members for such elections.

Supreme Court and the Tenth Schedule

1. Kuldip Nayar vs Union of India (2006)

• The Supreme Court upheld the system of open ballot for Rajya Sabha elections.
• It emphasised that transparency can counteract corruption if secrecy is compromised.
• However, the court clarified that an MLA voting against their party candidate in such elections would not face disqualification under the Tenth Schedule.
• Instead, they may face disciplinary action from their political party.

2. Ravi S. Naik and Sanjay Bandekar vs Union of India (1994)

• The Supreme Court determined that voluntarily giving up party membership under the Tenth Schedule isn't limited to formal resignation.
• It extends to the member's conduct both inside and outside the house to infer if it qualifies as voluntarily giving up membership.

The Way Forward

• Despite legal safeguards, instances of cross-voting persist, undermining the electoral process.
• The Supreme Court should reconsider its stance on whether cross-voting in such elections can be a valid ground for disqualification under the Tenth Schedule, serving as a deterrent for future cross-voting incidents.