• • As per Article 80 of the Constitution, representatives of each State to the Rajya Sabha are elected indirectly by the elected members of their Legislative Assembly.
  • The polls for Rajya Sabha will be required only if the number of candidates exceed the number of vacancies.
  • Till 1998, the outcome of Rajya Sabha elections was usually a foregone conclusion, the parties with a majority in the state assembly often had their candidates win unopposed due to a lack of competition.
    • However, the June 1998 Rajya Sabha elections in Maharashtra witnessed cross-voting that resulted in the loss of a Congress party candidate.

Amendment to the Representation of the People Act, 1951:

• • In order to rein in the MLAs from such cross-voting, an amendment to the Representation of the People Act, 1951 was carried out in 2003.
    • Section 59 of the Act was amended to provide that the voting in elections to Rajya Sabha shall be through an open ballot.
  • The MLAs of political parties are required to show their ballot paper to the authorised agent of their Party.
  • Not showing the ballot paper to the authorised agent or showing it to anyone else will disqualify the vote.
  • Independent MLAs are barred from showing their ballots to anyone.

Process of Election in Rajya Sabha:

• • Seat Allocation: The Rajya Sabha has a strength of 250 members representing States and Union Territories including Delhi and Puducherry.
    • Out of the total, 12 are directly nominated by the President from the fields of art, literature, science, Social Service.
    • Rajya Sabha seats are distributed among states based on their population. For example, Uttar Pradesh has a quota of 31 Rajya Sabha seats while Goa has just one.
  • Indirect Election System: The Members of the state legislative assemblies choose Rajya Sabha members through an indirect election system of proportional representation by means of a Single Transferable Vote (STV).
    • In this system, the voting power of each MLA is determined by the population of their respective constituencies.
  • Quotas: To be elected, a candidate must secure a specific number of votes known as quotas. The quota is determined by dividing the total valid votes by the number of seats available plus one.
    • In states with multiple seats, the initial quota is calculated by multiplying the number of MLAs by 100, as each MLA''s vote is valued at 100.
  • Preferences and Surplus: When filling out the ballot paper with names of candidates from various parties, MLAs rank their preferences against each candidate — with 1 indicating the top preference (the first preferential vote), 2 for the next, and so forth.
    • If a candidate receives enough first preferential votes to meet or exceed the quota, they are elected.
    • If a winning candidate has surplus votes, those votes are transferred to their second choice (marked as number 2). If multiple candidates have surpluses, the largest surplus is transferred first.
  • Elimination of Fewer Votes: To prevent wasted votes, if the required number of candidates are not elected after surplus transfers, the candidate with the fewest votes is eliminated, and their unexhausted ballot papers are redistributed among the remaining candidates.
    • An "exhausted paper" refers to a ballot paper with no further preferences recorded for continuing candidates.
    • This process of surplus vote transfers and eliminations continues until enough candidates reach the quota to fill all available seats.

Note

Shailesh Manubhai Parmar v Election Commission of India Case, 2018:

• SC denied the None Of The Above (NOTA) option to the electors in the Rajya Sabha election.
• The SC stated that making NOTA applicable in Rajya Sabha elections is contrary to Article 80(4) of the constitution.
• Article 80(4) states that the representatives of each state in the Council of States shall be elected by the elected members of the legislative assembly of the state in accordance with the system of proportional representation by means of the single transferable vote.

JMM bribery case, 1998:

• The SC had to interpret the provisions of Article 105(2) of the Constitution, which provides immunity to lawmakers for their speech and votes in Parliament or any committee thereof.
• The Supreme Court, laid down in the JMM bribery case judgment of 1998, that lawmakers who took bribes were immune from prosecution for corruption if they go ahead and vote or speak in the House as agreed.
• In March 2024, a Seven-judge Bench overruled the judgment by a five-judge Bench in a 25-year-old JMM bribery case, declaring that parliamentary privilege or immunity will not protect legislators who take bribes to vote or speak in Parliament or State Legislative Assemblies from criminal prosecution.
• Privileges and immunities are not gateways to claim exemptions from the general law of the land.

Anti-Defection Law Apply to Rajya Sabha Elections?

• Tenth Schedule and "Anti-Defection" Law:
• The Tenth Schedule of the Constitution, introduced by the 52^nd Constitutional Amendment Act in 1985, contains provisions related to the "anti-defection" law.
• It states that a member of Parliament or a state legislature who voluntarily gives up the membership of their political party or votes against the instructions of their party is liable for disqualification from the House.
• This instruction regarding voting is usually issued by the party whip.
• Applicability of Tenth Schedule:
• However, the Election Commission clarified in July 2017 that the provisions of the Tenth Schedule, including the anti-defection law, are not applicable to Rajya Sabha elections.
• Therefore, political parties cannot issue any whip to their members for Rajya Sabha elections, and members are not bound by party instructions in these elections.

Cross Voting

• Background:
• Rajendra Prasad Jain won a seat in Bihar through cross-voting by Congress MLAs (in exchange for bribes) later, Jain''s election was declared void by the Supreme Court in 1967.
• About Cross Voting:
• Cross voting refers to a situation in which a member of a legislative body, such as a Member of Parliament or a Member of a Legislative Assembly, belonging to one political party, votes for a candidate or a party other than their own during an election or any other voting process.
• In the context of Rajya Sabha elections in India, cross voting can occur when members of a political party vote for candidates from other parties instead of the candidates nominated by their own party.
• This can happen due to various reasons, including disagreement with the party''s candidate selection, inducements or pressures from other parties, personal relationships with candidates from other parties, or ideological differences.

Implications of Cross Voting

• Negative Implications:
• Undermining Representation: Cross-voting can undermine the representation of the electorate.
• MLAs are expected to vote in alignment with the party''s interests or the will of their constituents. When they deviate from this, it can lead to the election of candidates who may not have the support of the majority.
• Corruption: Cross-voting often occurs due to bribery or other corrupt practices, as illustrated in the example of Rajendra Prasad Jain''s election. This undermines the integrity of the electoral process and erodes public trust in democracy.
• Jain won a seat in Bihar through cross-voting by Congress MLAs (in exchange for bribes) later Jain''s election was declared void by the Supreme Court in 1967.
• Party Discipline: Cross-voting reflects a lack of party discipline, indicating internal divisions within political parties. It weakens party cohesion and stability, making it difficult for parties to pursue coherent policy agendas.
• Democratic Values: Cross-voting goes against the democratic principle of accountability, where representatives are expected to uphold the interests of their constituents and the broader public good. It prioritizes personal gain or party politics over democratic principles.
• Potential Positive Implications:
• Independence: Cross-voting can signal a degree of independence among elected representatives, allowing them to vote according to their conscience or the interests of their constituents rather than strict party lines.
• This can lead to more nuanced decision-making and representation.
• Checks and Balances: Cross-voting, if driven by genuine differences in opinion or ideology, can serve as a check on the dominance of a single party or faction within the legislative body.
• It can prevent the concentration of power and promote greater balance and diversity of viewpoints.
• Accountability: In some cases, cross-voting may reflect dissatisfaction with party leadership or policies, forcing parties to introspect and address internal grievances. This can ultimately lead to greater accountability and responsiveness to the electorate.

SC’s Ruling Related to the Tenth Schedule and Rajya Sabha Election

• Kuldip Nayar vs. Union of India, 2006:
• The Supreme Court (SC) upheld the system of open ballot for Rajya Sabha elections.
• It reasoned that if secrecy becomes a source for corruption, then transparency has the capacity to remove it.
• However, in the same case the court held that an elected MLA of a political party would not face disqualification under the Tenth Schedule for voting against their party candidate.
• He/she may at the most attract disciplinary action from their political party.
• Ravi S. Naik and Sanjay Bandekar vs. Union of India, 1994:
• The SC held that voluntarily giving up membership under the Tenth Schedule is not synonymous with only formally resigning from the party to which the member belongs.
• The conduct of a member both inside and outside the house can be looked into to infer if it qualifies as voluntarily giving up membership.

Road ahead

• Implementing stricter laws and regulations to combat electoral malpractices, including bribery and corruption.
• This could involve increasing penalties for offenders, enhancing transparency in campaign financing, and empowering independent electoral bodies to enforce compliance.
• Encouraging political parties to adopt internal mechanisms for promoting discipline and accountability among their members.
• This could include strengthening party leadership, promoting intra-party democracy, and fostering a culture of ethical conduct.
• Raising awareness among voters and stakeholders about the importance of electoral integrity and the consequences of cross-voting. This could involve public education campaigns, media coverage of electoral issues, and civic engagement initiatives to empower citizens to hold their representatives accountable.