The recently held Rajya Sabha elections in J&K and its aftermath has brought to the fore a combination of political and legal questions. While we do not intend to touch upon the political part of it, the idea behind this article is to highlight the legal aspect which throws-up an extremely thought provoking scenario – one where one is tempted to argue that the elections could possibly be invalid.

An RTI application filed under the Right to Information Act, 2009, and purported to have been answered by the Central Public Information Officer of the J&K Assembly Secretariat, claims that one of the parties with MLAs participating (as electors) in the election had not appointed any authorised agent in terms of the Conduct of election rules, 1961. This has led to the argument that some MLAs voted in the Rajya Sabha election without any party mechanism in place to verify their votes. Since Rule 39AA’s (of the Conduct of election rules, 1961) obligation to show the ballot paper to the authorized agent can only arise when such an agent is appointed, the MLAs in such a situation (whether actual or hypothetical) would have faced no such obligation and voted in effective secrecy.

The Rajya Sabha, unlike the Lok Sabha where members are elected directly by the people through a general election, is elected indirectly. Under Article 80(4) of the Constitution, representatives of each State in the Council of States (Rajya Sabha) are elected by the elected members of the Legislative Assembly of that State using the Single Transferable Vote. The process on polling day is straightforward, each MLA receives a ballot paper, marks their preference in a private voting compartment, and the votes are counted using the Single Transferable Vote method. A candidate needs a certain quota of votes to be elected, and votes in excess of the quota are transferred to the next preference.

By the early 2000s, cross-voting in Rajya Sabha elections had become an acknowledged problem. Allegations were flying thick and fast claiming MLAs were known to sell their votes to the highest bidder, with parties, and often candidates with significant personal wealth, inducing legislators to vote against their party’s direction. The secret ballot made this nearly impossible to detect or prove. In response, Parliament enacted the Representation of the........

© Greater Kashmir