JUDGMENT :

Dhananjaya Y Chandrachud, CJI.

1. The jurisdiction of this Court under Article 32 of the Constitution has been invoked by Lok Prahari, a society registered under the Societies Registration Act 1860. The petitioner has been represented in these proceedings by Mr S N Shukla, who is the General Secretary. Two specific challenges have been set up to the vires of:

(i) Rule 39-AA of the Conduct of Election Rules 1961¹[“1961 Rules”]; and

(ii) The proviso to Section 33 of the Representation of the People Act 1951²[“1951 Act”].

2. Article 80 of the Constitution provides for the composition of the Council of States. Article 80(1)(b) envisages that the Council of States shall consist of “not more than two hundred and thirty eight representative of the States and of the Union Territories”. The allocation of seats in the Council of States to be filled by representatives of the States and Union Territories is in accordance with the provisions contained in the Fourth Schedule³[clause (2) of Article 80]. Clause (4) of Article 80 stipulates 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. As regards the Legislative Councils, Article 171(3)(d) stipulates that one-third of the members shall be elected by the members of the Legislative Assembly of the State from amongst persons who are not members of the Assembly.

3. According to the petitioner, for fifty years after the enactment of the 1951 Act, elections to both the Council of States and Legislative Councils were conducted by secret ballot. However, by Act 40 of 2003, Sections 59, 94 and 128(1) of the 1951 Act were amended so as to provide for an open ballot system for elections to the Rajya Sabha. The proviso to Section 59 stipulates that the votes at every election to fill a seat or seats in the Council of States shall be given by open ballot. Section 94 which protects the secrecy of voting contains a proviso to the effect that the Section shall not apply to a situation where the voting is by open ballot. A similar provision has been made in the proviso to Section 128(1).

4. Rule 39-AA of the 1961 Rules was inserted by a notification dated 27 February 2004. Rule 39-AA reads as follows :

"39 AA. Information regarding casting of votes. -(1)Notwithstanding anything contained in rule 39A, the presiding officer shall, between the period when an elector being a member of a political party records his vote on a ballot paper and before such elector inserts that ballot paper into the ballot box, allow the authorised agent of that political party to verify as to whom such elector has cast his vote:

Provided that if such elector refuses to show his marked ballot paper to the authorised agent of his political party, the ballot paper issued to him shall be taken back by the presiding officer or a polling officer under the direction of the presiding officer and the ballot paper so taken back shall then be further dealt with in the manner specified in sub-rules (6) to (8) of rule 39A as if such ballot paper had been taken back under sub-rule (5) of that rule.

(2) Every political party, whose member as an elector casts a vote at a polling station, shall, for the purposes of sub-rule (1), appoint, in Form 22A, two authorised agents.

(3) An authorised agent appointed under sub-rule (2) shall be present throughout the polling hours at the polling station and the other shall relieve him when he goes out of the polling station or vice versa."

5. The petitioner has sought to challenge the constitutional validity of Rule 39-AA on the ground that it is (i) ultra vires Article 80(4) of the Constitution; (ii) violative of Article 14; and (iii) contrary to the provisions of Section 123(2) of the 1951 Act.

6. We have heard Mr S N Shukla, petitioner, who appears in person, Mr K M Nataraj, Additional Solicitor General for the