PUCL Bulletin, April 2002

Secrecy is Central to Voting
By Rajindar Sachar

In the next sessions of Parliament, an anti-democratic legislation is likely to be moved by the government. Unfortunately, it has the support of all the opposition parties. My reference is to the government's move to amend the Constitution and also the Representation of People Act, 1951, so as to make two vital changes in our election law; to amend Article 80(4) of the Constitution and Section 3 of the 1951 Act which provide that a person shall not be qualified to be chosen as a representative of any state in the Council of States (Rajya Sabha) unless he/she is an elector for a parliamentary constituency in that state and secondly that the voting for the elections of the Council of States should be by show of hand or open and not by secret ballot, as mandated by Section 94 of the 1951 Act.

This change, if carried out, will only strengthen the hold of party bosses to pick up their favourites. At present, even the most autocratic party leader has to pay consideration to the local sentiment. But with the proposed change, centralisation will increase and cronyism will become the rule resulting in nominating persons whose activities or business or profession may be limited hundreds of miles away from the state, which he/she is supposed to represent.
Arguments that many able people are not accommodated because of the present restriction are an insult to the large number of capable persons in each state. This argument seems to assume that it is only within the coterie of the top party leadership and their hangers on at Delhi that capable people are found.

This also goes against the principle of federalism which demands that the States must have an effective voice in all functions at the Centre and a person in the Rajya Sabha purportedly representing a state obviously cannot do it whose language he/she is not able to understand. He/she may also not be familiar with its culture and may never have interacted with the people of the state whom he/she is supposed to be representing. What an ironic situation!
Representatives (our Lok Sabha) and the Senate (our Rajya Sabha): the constitution provides that no person will be qualified to be Representative or Senator who shall not, when elected, be an inhabitant of that state for which he/she shall be chosen.

Secrecy of ballot not can be appropriately styled as a postulate of constitutional democracy. It sub serves a very vital public interest in that an elector or a voter should be absolutely free in the exercise of his franchise untrammeled by any constraint, which includes constraint as to disclosure. A, remote or distinct possibility that at some point a voter may under a compulsion of law be forced to disclose for whom he/she has voted would act as a positive constraint and chooses to exercise his franchise in the manner he/she freely chooses to exercise.

The only argument given is that the party bosses have found that many of their candidates have been defeated because in the secrecy of voting some legislators sell their votes for money. How sad! I should have thought that this evil, which is certainly there, would force political parties to make an earnest effort to find ways of checking it rather than destroy the fundamental basis of secrecy of voting and thus weaken parliamentary democracy. This amoral attitude reminds one of the famous advice given by cynics that "if you cannot fight thieves, join them." Of course, no one put it better than in the piercing satire by Oscar Wilde, namely, "the best way to resist temptation is to yield to it".

I fear that this kind of thinking may lead to the suggestion of denying secret ballot in Assembly polling on the ground that buying of votes takes place in some Slums and bustees.

Nowhere in the world where democracy prevails will one find a law, which profanes the sacred principle of secrecy of voting. Parliament would be making a laughing stock of sanctity of free and fair elections if these amendments are passed.

Home | Index