After Ink Fiasco, Do the Rajya Sabha Polls Need to Be Revamped?

Election Commission doesn’t have full authority to avert another pen fiasco in Rajya Sabha polls, by Jagdeep Chhokar

(Congress suffered a blow in the recently held Rajya Sabha polls after an independent candidate backed by it lost the elections. At the centre of the controversy was the usage of a pen, other than the ink pen allowed by the Election Commission, to cast vote. While some attributed the result to Congress’ internal sabotage by a faction led by former Haryana Chief Minister, BS Hooda, others called for the poll process to the House of Elders to be revamped.)

What is wrong with the way elections to the Rajya Sabha are held? This question seems to be bothering a lot of people these days after witnessing what transpired in the recently held polls. Political parties in several states are busy disciplining their members/MLAs for indulging in what is called cross-voting and defying the party diktats in other ways. In keeping with its reputation for electoral innovation since the Ayaram-Gayaram days, Haryana seems to have left all other states behind.

In the aftermath of the fiasco, there have been calls for the Election Commission of India (ECI) to change the polling process for the Rajya Sabha elections. Such calls betray a lack of proper understanding and role of the ECI. While it is true that Article 324 of the Constitution of India has given the ECI plenary powers for “The superintendence, direction and control… for… the conduct of, all elections to Parliament… ,” these powers are always “subject to the provisions of any law made by the Parliament” in this regard.

Limitations of the Election Commission

In the specific context of holding elections, the law made by the Parliament is the Representation of the People Act, 1951 (RP Act). The other relevant provision is the Conduct of Election Rules, 1961. In addition, the RP Act and the Conduct of Election Rules is always subject to judicial review by the Supreme Court of India.

So, while we call for the ECI to take action, we must remember the constraints it works under. A glaring example is that while the ECI is the appropriate authority under the RP Act to register political parties, the Supreme Court in a judgement on 10 May, 2002, decided that though the ECI has the power to register political parties, it does not have the power to de-register them.

The result of this ruling is that the number of registered political parties continues to go up, and they continue to get income tax exemption with a very small proportion contesting elections. At the last count, there were over 2000 registered political parties with only about 250-300 of them contesting elections.

Rules for the Rajya Sabha Polls

The Conduct of Election Rules lays down guidelines for the Rajya Sabha elections in excruciating detail. An example is the rule which requires MLAs to cast their vote using a pen with indigo ink provided by the Vidhan Sabha Secretariat, whose nib must be 1 mm in thickness. Votes marked by any other colour of ink are declared invalid.

The rules, as amended in 2004, also specify that each MLA has to show his/her marked ballot paper to “the authorised agent of that political party to verify as to for whom such elector has cast his vote.” The vote of any MLA who “refuses to show his marked ballot paper to the authorised agent of his political party”, is cancelled.

These rules raise important questions: Are our MLAs so irresponsible and untrustworthy that such rules need to be made? How come even such stringent rules are not able to prevent spectacles as seen in the recent Rajya Sabha elections? Would even more stringent rules be able to prevent such instance in future?

The answer to the first question is “Yes”, and those to the remaining questions is that no change of rules is going to help, unless some significant changes are made.

Political Parties Need to Get Their Act Together

Candidates for contesting elections to state Assemblies are chosen by all political parties seemingly on a universal criterion called ‘winnability’, with no apparent regard to any of their other qualities. The proportion of candidates contesting elections who have criminal cases pending against them continues to go up with every election.

So long as political parties continue to give tickets to persons of unsavoury backgrounds, the problem of Rajya Sabha elections is not going to be solved. The correction needed is not in the way the election to the Rajya Sabha is conducted but in the way political parties function. In a democratic polity, it is obvious that the main instrument of operationalising democracy, the political parties, should function in a democratic manner, and not as private limited companies. The Law Commission of India said so in 1999 in their 170th report.

(The writer is former professor, Dean, and Director In-charge of Indian Institute of Management, Ahmedabad. He can be reached at @JagdeepChhokar. This is a personal blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

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