JOIN USAnti-defection law of no help to check cross-voting
The Election Commission’s reminder about the NOTA (None of The Above) option in the Rajya Sabha elections in Gujarat and other states triggered anxiety among major parties.
The Congress and the BJP are concerned as the anti-defection law is of little help to act against recalcitrant MLAs who won’t vote for official nominees.
Cross-voting in the election to the Upper House is not an area covered by the anti-defection law or the Tenth Schedule of the Constitution, which laid down the process by which legislators may be disqualified on grounds of disobeying the directives of the party leadership on a vote inside the House.
It does not cover for any vote outside the House, like voting for the Rajya Sabha election, the vice-president’s election and the Presidential poll.
‘Outside House’
These elections are treated as “happening outside the House”, as held by the Supreme Court judgements in the case of Kuldip Nayar v Union of India, (AIR 2006 SC 3127).
In fact, the poll panel has issued clarification several times placing reliance on apex court judgements.
One such clarification was issued on July 6, saying that there is no scope for acting on dissenting legislators under the anti-defection law for voting against an official nominee — whether it is the Rajya Sabha poll or election for the post of President.
No whip
No political party can issue a whip to its MPs and MLAs for a particular candidate, which would be constituted as an offence under Section 171C of the IPC, the poll panel said, citing orders of the Supreme Court in related cases.
The EC said voting for the Rajya Sabha poll or for the Presidential poll is different from voting by a Member of Parliament or State Legislature inside the House.
The EC recalled that the apex court held that an elector would not attract the penal provisions of the Tenth Schedule for having so voted in the Rajya Sabha election — just because there is a provision for open balloting.
The EC also recalled that the Supreme Court had observed in Pashupati Nath Sukul v Nem Chandra Jain (AIR 1984 SC 399) that elections to the Rajya Sabha by members of the state Legislative Assemblies are a non-legislative activity and not a proceeding within the State Legislature.
The EC can, however, act if the Rajya Sabha poll process is proven beyond doubt to be vitiated by acts of bribery.
Significantly, in 2006, a five-judge Constitution Bench of the Supreme Court had upheld a 2003 amendment introducing open ballot, instead of secret ballot, for elections to the Rajya Sabha.