The foundation of free and fair elections is the secrecy of the ballot. The Rajya Sabha elections are unique in that respect, where voting is not secret. The MLAs elect their state Rajya Sabha MPs, and as the process stands now, have to show the votes to their party’s representative. However, the open ballot voting system is a 2003 addition to our Rajya Sabha electoral system.

Until 1998, Rajya Sabha elections were the bastion of party discipline, their outcome a foregone conclusion. Candidates nominated by parties would win uncontested. Voting only took place when there were more contestants than vacant seats in the state. Electoral contest was usually among Independent candidates.

The June 1998 Rajya Sabha elections in Maharashtra changed this position. Seven contenders were in the fray for six seats. The Congress had fielded two candidates — Najma Heptullah, who had served three terms in the Upper House, and Ram Pradhan, a former Maharashtra-cadre IAS officer and ex-Union home secretary. The Shiv Sena’s candidates were its sitting MP Satish Pradhan and media personality Pritish Nandy. Pramod Mahajan, who had lost the Lok Sabha elections earlier that year, was contesting for the BJP.

There were two Independent candidates: media baron Vijay Darda, whom the Congress supported, and former railway minister Suresh Kalmadi, whom the Shiv Sena supported. Kalmadi had rebelled against the Congress.

The Congress had enough votes to ensure the victory of both its candidates. But in a surprising turn of events, Congress candidate Ram Pradhan, a close aide of Sonia Gandhi, lost. An Independent candidate sailed through.
The votes cast by MLAs were secret, and Congress MLAs defied their party’s voting instructions, causing Pradhan’s defeat. Reports suggest that legislators from other parties also cross-voted.

Pradhan’s loss reverberated in all political circles to a point that parties started thinking about steps to rein in their MLAs.

The solution eventually came from the Ethics Committee of the Rajya Sabha, which was set up in 1997 and was headed by Rajya Sabha MP and former Maharashtra Chief Minister S B Chavan.

In its first report in December 1998, the committee observed that money and muscle power played an increasing role in Rajya Sabha elections, suggesting: “In order not to allow big money and other considerations to play mischief… the Committee is of the view that instead of a secret ballot, the question of holding the elections to the Rajya Sabha and the Legislative Councils in states by open ballot may be examined.”

The Atal Bihari Vajpayee government in 2001 acted on the suggestion.

Arun Jaitley, the law minister at the time, introduced a Bill in Parliament to amend the law relating to the Rajya Sabha elections with an open voting system and the removal of domiciliary requirements for contesting the polls. Kuldeep Nayar, a veteran journalist who was a nominated Rajya Sabha MP, challenged its constitutional validity in the Supreme Court, arguing that the “concept of open ballot would defeat the attainment of free and fair elections”.

The Court overruled this contention and held the law to be constitutional. It reasoned that “the secrecy of the ballot is a vital principle for ensuring free and fair elections. The higher principle, however, is free and fair elections and purity of elections. If secrecy becomes a source for corruption, then sunlight and transparency have the capacity to remove it”.

But an open ballot has not helped bring purity to the Rajya Sabha elections or stopped party candidates from losing. A common response of the parties, as evident in the recent Rajya Sabha elections, has been to herd their MLAs to hotels and resorts to prevent poaching.

As Niloptal Basu, a CPM Rajya Sabha MP, said during the debate on the open ballot law: “We should, as political parties, seriously introspect as to how the principles on which political parties function can be rectified; as to how we can recapture certain healthy practices in politics…The problem of indiscipline and the problem of dissidents can never be stopped in this manner unless we improve our system of internal democracy, unless we have healthy practices”.

The writer is head of outreach PRS Legislative Research