Why did the EC reject the votes of Gujarat Congress MLAs?

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The ECI rejected the votes of 2 Congress MLAs after it was revealed that they showed their ballot paper to others in addition to the authorized agent. These provisions were brought in through an amendment made to the RP Act 1951 in 2003 when the NDA was in power. 

In a late night order yesterday, the Election Commission of India (ECI) directed the returning officer of the Gujarat Rajya Sabha polls to reject the votes of two Congress MLAs. In its order, the ECI said that these two Congress MLAs violated the voting procedure and secrecy of the ballot papers cast by them.

But what rule position was violated by these two MLAs? Here is a low down of the rules involved in voting during the Rajya Sabha election.

Major amendment to the RP Act in 2003 leading to changes in Rajya Sabha election

In 2003, during the rule of the first NDA government, an amendment was made to the Representation of People’s Act 1951. The following two provisions relating to the election of Rajya Sabha members were modified through this amendment.

  • The first one is that the candidate contesting the Rajya Sabha election from any state need not be a voter in that state. In other words, a voter from any part of the country can contest the Rajya Sabha election from any state. For instance, the former PM Manmohan Singh is a beneficiary of this amendment. He was and is currently a member of the upper house from Assam which is not his home state.
  • The second one prescribes the manner of voting in the Rajya Sabha election. This amendment makes the voting in the Rajya Sabha election an open ballot rather than a secret ballot.

Following the amendment to the RP Act, the relevant rules were amended in 2004 to add rule 39AA. Rule 39AA of the Conduct of Election Rules prescribes the manner in which voting should take place in the RS elections. The rule clearly states that the authorized agent of the political party to which the voter belongs should verify the ballot paper without which the vote will be treated invalid.

The ECI also states this in its handbook to the returning officer.

These provisions were challenged in the Supreme Court by Kuldip Nayar

Kuldip Nayar challenged these amendments in the SC through a writ petition filed in 2004. The SC dismissed this petition in 2006 after holding that  constitution does not put any restriction on the legislative powers of the Parliament with respect to the election of members of the Rajya Sabha. The SC maintained that  amendments to Sections 3, 59, 94 and 128 of the Representation of the People Act, 1951 made through an act in 2003 do not infringe any Constitutional provision. 

Since then, the elections to the Rajya Sabha are being held in the open ballot system as described above. Very recently in 2016, the vote of Congress MLA from Haryana Randeep Singh Surjewala was also rejected because he showed his vote to a person other than the authorized agent of the party. The ECI has now rejected the votes of two congress MLAs in Gujarat following the same provision.

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