The Supreme Court has asked an advocate to approach the Election Commission of India with his plea for measures to stop misuse of Conduct of Election Rules as per which an MLA has to cast vote in Rajya Sabha polls with the instrument/article (pen with indigo ink) supplied by the Secretariat.
Advocate Amit Sahni had moved the court seeking directions to the ECI to take steps to avoid misuse of Rule 39 (2)(b), Rule 70, Rule 73 (2)(e) of the Conduct of Elections Rule, 1961 after the 2016 incident revolving around the elections to the two Rajya Sabha seats from Haryana.
Back then, votes of 12 Congress MLAs were declared invalid as somebody changed the pen supplied by the Election Commission to mark the ballot paper and replaced it with a normal ink pen. This error changed the results of the polls with Congress candidate losing the seat to BJP candidate.
Though an FIR was lodged in this case, Sahni sought steps to avoid a repeat and prayed that Rajya Sabha votes be made public in keeping with the open ballot system introduced in the year 2003.
"As it is always open for the petitioner to approach the Election Commission of India, we are not inclined to interfere with the order impugned in the special leave petition. We, however, make it clear that if the Election Commission of India is approached by the petitioner at any point of time, it will be obligatory on the part of the Election Commission of India to pass a reasoned order in the matter," said a bench comprising Chief Justice Rajan Gogoi and Justice Sanjiv Khanna.
Sahni had moved the Supreme Court after the Delhi High Court rejected his petition in this regard in August 2018.
He had also made a representation to the ECI but no action was taken on the same.
"Rajya Sabha Election is no longer a secret ballot pursuant to amendment of 2003 and at least in such crucial election of Upper House of the Parliament, the intention of the Elector can be sought by way of Affidavit etc. The intention of Elector cannot be permitted to be overridden by ink used by Elector. Further as per aforesaid amendment, it is mandatory for the Elector casting vote to the Agent of his/her Political Party, failing which, his/her vote would render invalid, meaning thereby if there is no secrecy of voting in Rajya Sabha Election, then an Affidavit can be taken from elector/MLA or some other mechanism could be developed so that ink should not decide the fate of members of Rajya Sabha," said Sahni.