SUPREME
COURT OF INDIA
(P. SATHASIVAM, CJI. RANJANA PRAKASH DESAI AND RANJAN GOGOI, JJ.)
PEOPLE’S
UNION FOR CIVIL LIBERTIES & ANR. Petitioners
VERSUS
UNION
OF INDIA & ANR. Respondents
Writ Petition (Civil) No. 161 of 2004-Decided on 27-9-2013.
Election – Right of “Not to Vote”
JUDGMENT
P. Sathasivam, CJI.:- The
present writ petition, under Article 32 of the Constitution of India, has been filed
by the petitioners herein challenging the constitutional validity of Rules
41(2) & (3) and 49-O of the Conduct of Election Rules, 1961 (in short ‘the
Rules’) to the extent that these provisions violate the secrecy of voting which
is fundamental to the free and fair elections and is required to be maintained
as per Section 128 of the Representation of the People Act, 1951 (in short ‘the
RP Act’) and Rules 39 and 49-M of the Rules.
2. The petitioners herein
have preferred this petition for the issuance of a writ or direction(s) of like
nature on the ground that though the above said Rules, viz., Rules 41(2) &
(3) and 49-O, recognize the right of a voter not to vote but still the secrecy
of his having not voted is not maintained in its implementation and thus the
impugned rules, to the extent of such violation of the right to secrecy, are
not only ultra vires to the said Rules but also violative of Articles 19(1)(a)
and 21 of the Constitution of India besides International Covenants.
3. In the above backdrop,
the petitioners herein prayed for declaring Rules 41(2) & (3) and 49-O of
the Rules ultra vires and unconstitutional and also prayed for a direction to
the Election Commission of IndiaRespondent No. 2 herein, to provide necessary
provision in the ballot papers as well as in the electronic voting machines for
the protection of the right of not to vote in order to keep the exercise of
such right a secret under the existing RP Act/the Rules or under Article 324 of
the Constitution.
4. On 23.02.2009, a Division
Bench of this Court, on an objection with regard to maintainability of the writ
petition on the ground that right to vote is not a fundamental right but is a
statutory right, after considering Union of India vs. Association for
Democratic Reforms and Anr. (2002) 5 SCC 294 and People’s Union for Civil
Liberties vs. Union of India (2003) 4 SCC 399 held that even though the judgment
in Kuldip Nayar & Ors. vs. Union of India & Ors. (2006) 7 SCC 1 did not
overrule or discard the ratio laid down in the judgments mentioned above,
however, it creates a doubt in this regard, referred the matter to a larger
Bench to arrive at a decision.
5. One Centre for Consumer
Education and Association for Democratic Reforms have filed applications for
impleadment in this Writ Petition. Impleadment applications are allowed.
6. Heard Mr. Rajinder
Sachhar, learned senior counsel for the petitioners, Mr. P.P. Malhotra, learned
Additional Solicitor General for the Union of India-Respondent No. 1 herein,
Ms. Meenakshi Arora, learned counsel for the Election Commission of
India-Respondent No. 2 herein, Ms Kamini Jaiswal and Mr. Raghenth Basant,
learned counsel for the impleading parties. Contentions:
7. Mr. Rajinder Sachhar,
learned senior counsel for the petitioners, by taking us through various provisions,
particularly, Section 128 of the RP Act as well as Rules 39, 41, 49-M and 49-O
of the Rules submitted that in terms of Rule 41(2) of the Rules, an elector has
a right not to vote but still the secrecy of his having not voted is not
maintained under Rules 41(2) and (3) thereof. He further pointed out that similarly
according to Rule 49-O of the Rules, the right of a voter who decides not to
vote has been accepted but the secrecy is not maintained. According to him, in
case an elector decides not to record his vote, a remark to this effect shall
be made against the said entry in Form 17-A by the Presiding Officer and the
signature or thumb impression of the elector shall be obtained against such
remark. Hence, if a voter decides not to vote, his record will be maintained by
the Presiding Officer which will thereby disclose that he has decided not to
vote. The main substance of the arguments of learned senior counsel for the
petitioners is that though right not to vote is recognized by Rules 41 and 49-O
of the Rules and is also a part of the freedom of expression of a voter, if a
voter chooses to exercise the said right, it has to be kept secret. Learned
senior counsel further submitted that both the above provisions, to the extent
of such violation of the secrecy clause are not only ultra vires but also
contrary to Section 128 of the RP Act, Rules 39 and 49-M of the Rules as well
as Articles 19(1)(a) and 21 of the Constitution.
8. On the other hand, Mr.
P.P. Malhotra, learned Additional Solicitor General appearing for the Union of India
submitted that the right to vote is neither a fundamental right nor a
constitutional right nor a common law right but is a pure and simple statutory
right. He asserted that neither the RP Act nor the Constitution of India
declares the right to vote as anything more than a statutory right and hence
the present writ petition is not maintainable. He further pointed out that in
view of the decision of the Constitution Bench in Kuldip Nayar (supra), the
reference for deciding the same by a larger Bench was unnecessary. He further
pointed out that in view of the above decision, the earlier two decisions of
this Court, viz., Association for Democratic Reforms and Another (supra) and
People’s Union for Civil Liberties (supra), stood impliedly overruled, hence,
on this ground also reference to a larger Bench was not required. He further
pointed out that though the power of Election Commission under Article 324 of the
Constitution is wide enough, but still the same can, in no manner, be construed
as to cover those areas, which are already covered by the statutory provisions.
He further pointed out that even from the existing provisions, it is clear that
secrecy of ballot is a principle which has been formulated to ensure that in no
case it shall be known to the candidates or their representatives that in whose
favour a particular voter has voted so that he can exercise his right to vote
freely and fearlessly. He also pointed out that the right of secrecy has been
extended to only those voters who have exercised their right to vote and the
same, in no manner, can be extended to those who have not voted at all.
Finally, he submitted that since Section 2(d) of the RP Act specifically
defines “election” to mean an election to fill a seat, it cannot be construed
as an election not to fill a seat.
9. Ms. Meenakshi Arora,
learned counsel appearing for the Election Commission of India – Respondent No.
2 herein, by pointing out various provisions both from the RP Act and the Rules
submitted that inasmuch as secrecy is an essential feature of “free and fair
elections”, Rules 41(2) & (3) and 49-O of the Rules violate the requirement
of secrecy.
10. Ms. Kamini Jaiswal and
Mr. Raghenth Basant, learned counsel appearing for the impleading parties, while
agreeing with the stand of the petitioners as well as the Election Commission
of India, prayed that necessary directions may be issued for providing another
button viz., “None of the Above” (NOTA) in the Electronic Voting Machines
(EVMs) so that the voters who come to the polling booth and decide not to
vote
for any of the candidates, are able to exercise their right not to vote while
maintaining their right of
secrecy.
11. We have carefully
considered the rival submissions and perused the relevant provisions of the RP
Act and the Rules.
Discussion:
12. In order to answer the
above contentions, it is vital to refer to the relevant provisions of the RP
Act and the Rules. Sections 79(d) and 128 of the RP Act read as under:
“79(d)--“electoral right”
means the right of a person to stand or not to stand as, or to withdraw or not
to withdraw from being, a candidate, or to vote or refrain from voting at an
election.
128 - Maintenance of secrecy
of voting--(1) Every officer, clerk, agent or other person who performs any
duty in connection with the recording or counting of votes at an election shall
maintain, and aid in maintaining, the secrecy of the voting and shall not
(except for some purpose authorized by or under any law) communicate to any
person any information calculated to violate such secrecy:
Provided that the provisions
of this sub-section shall not apply to such officer, clerk, agent or other
person who performs any such duty at an election to fill a seat or seats in the
Council of States.
(2) Any person who
contravenes the provisions of sub-section (1) shall be punishable with imprisonment
for a term which may extend to three months or with fine or with both.”
Rules 39(1), 41, 49-M and
49-O of the Rules read as under:
“39. Maintenance of secrecy
of voting by electors within polling station and voting procedure.--
(1) Every elector to whom a
ballot paper has been issued under rule 38 or under any other provision of
these rules, shall maintain secrecy of voting within the polling station and
for that purpose observe the voting procedure hereinafter laid down.
41. Spoilt and returned
ballot papers.--(1) An elector who has inadvertently dealt with his ballot paper
in such manner that it cannot be conveniently used as a ballot paper may, on
returning it to the presiding officer and on satisfying him of the inadvertence,
be given another ballot paper, and the ballot paper so returned and the
counterfoil of such ballot paper shall be marked "Spoilt: cancelled"
by the presiding officer.
(2) If an elector after
obtaining a ballot paper decides not to use it, he shall return it to the presiding
officer, and the ballot paper so returned and the counterfoil of such ballot
paper shall be marked as "Returned: cancelled" by the presiding
officer.
(3) All ballot papers
cancelled under sub-rule (1) or sub-rule (2) shall be kept in a separate
packet.
49M. Maintenance of secrecy
of voting by electors within the polling station and voting procedures.--(1)
Every elector who has been permitted to vote under rule 49L shall maintain secrecy
of voting within the polling station and for that purpose observe the voting
procedure hereinafter laid down.
(2) Immediately on being
permitted to vote the elector shall proceed to the presiding officer or the polling
officer incharge of the control unit of the voting machine who shall, by
pressing the appropriate button on the control unit, activate the balloting
unit; for recording of elector's vote.
(3) The elector shall
thereafter forthwith--
(a) proceed to the voting
compartment;
(b) record his vote by
pressing the button on the balloting unit against the name and symbol of the
candidate for whom he intends to vote; and
(c) come out of the voting
compartment and leave the polling station.
(4) Every elector shall vote
without undue delay.
(5) No elector shall be
allowed to enter the voting compartment when another elector is inside it.
(6) If an elector who has
been permitted to vote under rule 49L or rule 49P refuses after warning given
by the presiding officer to observe the procedure laid down in sub-rule (3) of
the said rules, the presiding officer or a polling officer under the direction
of the presiding officer shall not allow such elector to vote.
(7) Where an elector is not
allowed to vote under sub-rule (6), a remark to the effect that voting procedure
has been violated shall be made against the elector's name in the register of
voters in Form 17A by the presiding officer under his signature.
49-O. Elector deciding not
to vote.--If an elector, after his electoral roll number has been duly entered
in the register of voters in Form 17A and has put his signature or thumb
impression thereon as required under sub-rule (1) of rule 49L, decide not to
record his vote, a remark to this effect shall be made against the said entry
in Form 17A by the presiding officer and the signature or thumb impression of
the elector shall be obtained against such remark.”
13. Apart from the above
provisions, it is also relevant to refer Article 21(3) of the Universal
Declaration of Human Rights and Article 25(b) of the International Covenant on
Civil and Political Rights, which read as under:
“21(3) The will of the
people shall be the basis of the authority of government; this will shall be expressed
in periodic and genuine elections which shall be by universal and equal
suffrage and shall be held by secret vote or by equivalent free voting
procedures.”
“25. Every citizen shall
have the right and the opportunity, without any of the distinctions mentioned
in article 2 and without unreasonable restrictions:
(a) *** *** ***;
(b) To vote and to be
elected at genuine periodic elections which shall be by universal and equal suffrage
and shall be held by secret ballot, guaranteeing the free expression of the
will of the electors;”
14. Articles 19(1)(a) and 21
of the Constitution, which are also pertinent for this matter, are as under:
“19 - Protection of certain
rights regarding freedom of speech, etc.-- (1) All citizens shall have the right-
(a) to freedom of speech and
expression;
xxxxx
21 - Protection of life and
personal liberty--No person shall be deprived of his life or personal liberty
except according to procedure established by law.”
15. From the above
provisions, it is clear that in case an elector decides not to record his vote,
a remark to this effect shall be made in Form 17-A by the Presiding Officer and
the signature or thumb impression of the elector shall be obtained against such
remark. Form 17-A reads as under:
“FORM 17A [See rule 49L)
REGISTER OF VOTERS Election to the House of the People/ Legislative Assembly of
the State/ Union territory ……………from………………Constituency No. and Name of Polling
Station……………Part No. of Electoral Roll…………
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Sl.
No.
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Sl.
No. of elector in the electoral roll
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Details
of the document produced by the elector in proof of his/ her identification
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Signature/
Thumb impression of elector
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Remark
s
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(1)
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(2)
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(3)
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(4)
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(5)
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1.
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2.
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3.
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4.
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etc.
Signature of the Presiding Officer”
16. Before elaborating the
contentions relating to the above provisions with reference to the secrecy of voting,
let us first consider the issue of maintainability of the Writ Petition as
raised by the Union of India. In the present Writ Petition, which is of the
year 2004, the petitioners have prayed for the following reliefs:
“(i) declaring that Rules
41(2) & (3) and 49-O of the Conduct of Election Rules, 1961 are ultra vires
and unconstitutional to the extent they violate secrecy of vote;
(ii) direct the Election
Commission under the existing Representation of People Act, 1951 and the Conduct
of Election Rules, 1961 and/ or under Article 324 to provide necessary
provision in the ballot papers and the voting machines for protection of right
not to vote and to keep the exercise of such right secret;”
17. It is relevant to point
out that initially the present Writ Petition came up for hearing before a Bench
of two-Judges. During the course of hearing, an objection was raised with
regard to the maintainability of the Writ Petition under Article 32 on the
ground that the right claimed by the petitioners is not a fundamental right as
enshrined in Part III of the Constitution. It is the categorical objection of
the Union of India that inasmuch as the writ petition under Article 32 would
lie to this Court only for the violation of fundamental rights and since the
right to vote is not a fundamental right, the present Writ Petition under
Article 32 is not maintainable. It is the specific stand of the Union of India
that right to vote is not a fundamental right but merely a statutory right. It
is further pointed out that this Court, in Para 20 of the referral order dated
23.02.2009, reported in (2009) 3 SCC 200, observed that since in Kuldip Nayar (supra),
the judgments of this Court in Association for Democratic Reforms (supra) and
People’s Union for Civil Liberties (supra) have not been specifically overruled
which tend to create a doubt whether the right to vote is a fundamental right
or not and referred the same to a larger Bench stating that the issue requires
clarity. In view of the reference, we have to decide:
(i) Whether there is any
doubt or confusion with regard to the right of a voter in Kuldip Nayar (supra);
(ii) Whether earlier two
judgments viz., Association for Democratic Reforms (supra) and People’s Union
for Civil Liberties (supra) referred to by the Constitution Bench in Kuldip
Nayar (supra) stand impliedly overruled.
18. Though, Mr. Malhotra
relied on a large number of decisions, we are of the view that there is no need
to refer to those decisions except a reference to the decision of this Court in
Kuldip Nayar (supra), Association for Democratic Reforms (supra) and People’s
Union for Civil Liberties (supra).
19. A three-Judge Bench of
this Court comprising M.B Shah, P. Venkatarama Reddi and D.M. Dharmadhikari,
JJ. expressed separate but concurring opinions in the People’s Union for Civil
Liberties (supra). In para 97, Reddi, J made an observation as to the right to
vote being a Constitutional right if not a fundamental right which reads as
under:
“97. In Jyoti Basu v. Debi
Ghosal [1982] 3 SCR 318 this Court again pointed out in no uncertain terms
that:
8 "a right to elect,
fundamental though it is to democracy, is, anomalously enough, neither a fundamental
right nor a common law right. It is pure and simple a statutory right."
With great reverence to the
eminent Judges, I would like to clarify that the right to vote, if not a fundamental
right, is certainly a constitutional right. The right originates from the
Constitution and in accordance with the constitutional mandate contained in
Article 326, the right has been shaped by the statute, namely, R.P. act. That,
in my understanding, is the correct legal position as regards the nature of the
right to vote in elections to the House of the People and Legislative Assemblies.
It is not very accurate to describe it as a statutory right, pure and simple.
Even with this clarification, the argument of the learned Solicitor General
that the right to vote not being a fundamental right, the information which at
best facilitates meaningful exercise of that right cannot be read as an
integral part of any fundamental right, remains to be squarely met….”
Similarly, in para 123,
point No. 2 Reddi, J., held as under:-
“(2) The right to vote at
the elections to the House of the People or Legislative Assembly is a constitutional
right but not merely a statutory right; freedom of voting as distinct from
right to vote is a facet of the fundamental right enshrined in Article 19(1)(a).
The casting of vote in favour of one or the other candidate marks the
accomplishment of freedom of expression of the voter.”
Except the above two
paragraphs, this aspect has nowhere been discussed or elaborated wherein all
the three Judges, in their separate but concurring judgments, have taken the
pains to specifically distinguish between right to vote and
freedom of voting as a species of freedom of expression. In succinct, the ratio
of the judgment was that though the right to vote is a statutory right but the
decision taken by a voter after verifying the credentials of the candidate
either to vote or not is his right of expression under Article 19(1)(a) of the
Constitution.
20. As a result, the
judgments in Association for Democratic Reforms (supra) and People’s Union for Civil
Liberties (supra) have not disturbed the position that right to vote is a
statutory right. Both the judgments have only added that the right to know the
background of a candidate is a fundamental right of a voter so that he can take
a rational decision of expressing himself while exercising the statutory right
to vote. In People’s Union for Civil Liberties (supra), Shah J., in para 78D,
held as under:-
“…However, voters’
fundamental right to know the antecedents of a candidate is independent of statutory
rights under the election law. A voter is first citizen of this country and
apart from statutory rights, he is having fundamental rights conferred by the
Constitution…”
P. Venkatrama Reddi, J., in
Para 97, held as under:-
“…Though the initial right
cannot be placed on the pedestal of a fundamental right, but, at the stage when
the voter goes to the polling booth and casts his vote, his freedom to express
arises.
The casting of vote in
favour of one or the other candidate tantamounts to expression of his opinion
and preference and that final stage in the exercise of voting right marks the accomplishment
of freedom of expression of the voter. That is where Article 19(1)(a) is
attracted.
Freedom of voting as
distinct from right to vote is thus a species of freedom of expression and therefore
carries with it the auxiliary and complementary rights such as right to secure information
about the candidate which are conducive to the freedom…”
Dharmadhikari, J., in para
127, held as under:-
“…This freedom of a citizen
to participate and choose a candidate at an election is distinct from exercise
of his right as a voter which is to be regulated by statutory law on the
election like the RP Act…”
In view of the above, Para
362 in Kuldip Nayar (supra) does not hold to the contrary, which reads as under:-
“We do not agree with the
above submission. It is clear that a fine distinction was drawn between the
right to vote and the freedom of voting as a species of freedom of expression,
while reiterating the view in Jyoti Basu v. Debi Ghosal that a right to elect,
fundamental though it is to democracy, is neither a fundamental right nor a
common law right, but pure and simple, a statutory right”.
21. After a careful perusal
of the verdicts of this Court in Kuldip Nayar (supra), Association for Democratic
Reforms (supra) and People’s Union for Civil Liberties (supra), we are of the
considered view that Kuldip Nayar (supra) does not overrule the other two
decisions rather it only reaffirms what has already been said by the two
aforesaid decisions. The said paragraphs recognize that right to vote is a statutory
right and also in People’s Union for Civil Liberties (supra) it was held that
“a fine distinction was drawn between the right to vote and the freedom of
voting as a species of freedom of expression”.
Therefore, it cannot be said
that Kuldip Nayar (supra) has observed anything to the contrary. In view of the
whole debate of whether these two decisions were overruled or discarded because
of the opening line in Para 362 of Kuldip Nayar (supra) i.e., “we do not agree
with the above submissions…
” we are of the opinion that
this line must be read as a whole and not in isolation. The contention of the
petitioners in Kuldip Nayar (supra) was that majority view in People’s Union
for Civil Liberties (supra) held that right to vote is a Constitutional right
besides that it is also a facet of fundamental right under Article 19(1)(a) of
the Constitution. It is this contention on which the Constitution Bench did not
agree too in the opening line in para 362 and thereafter went on to clarify
that in fact in People’s Union for Civil Liberties (supra), a fine distinction
was drawn between the right to vote and the freedom of voting as a species of
freedom of expression. Thus, there is no contradiction as to the fact that
right to vote is neither a fundamental right nor a Constitutional right but a
pure and simple statutory right. The same has been settled in a catena of cases
and it is clearly not an issue in dispute in the present case. With the above
observation, we hold that there is no doubt or confusion persisting in the
Constitution Bench judgment of this Court in Kuldip Nayar (supra) and the
decisions in Association for Democratic Reforms (supra) and People’s Union for
Civil Liberties (PUCL) (supra) do not stand impliedly overruled.
Whether the present writ
petition under Article 32 is maintainable:
22. In the earlier part of
our judgment, we have quoted the reliefs prayed for by the petitioners in the
writ petition. Mr. Malhotra, learned Additional Solicitor General, by citing
various decisions submitted that since right to vote is not a fundamental right
but is merely a statutory right, hence, the present writ petition under Article
32 is not maintainable and is liable to be dismissed. He referred to the
following decisions of this Court in N.P. Ponnuswami vs. Returning officer,
1952 SCR 218, Jamuna Prasad Mukhariya vs. Lachhi Ram, 1955 (1) SCR 608,
University of Delhi vs. Anand Vardhan Chandal, (2000) 10 SCC 648, Kuldip Nayar
(supra) and K. Krishna Murthy (Dr.) vs. Union of India, (2010) 7 SCC 202,
wherein it has been held that the right to vote is not a fundamental right but
is merely a statutory right.
23. In Kochunni vs. State of
Madras, 1959 (2) Supp. SCR 316, this Court held that the right to move before
this Court under Article 32, when a fundamental right has been breached, is a
substantive fundamental right by itself. In a series of cases, this Court has
held that it is the duty of this Court to enforce the guaranteed fundamental
rights.[Vide Daryo vs. State of U.P. 1962 (1) SCR 574].
24. The decision taken by a
voter after verifying the credentials of the candidate either to vote or not is
a form of expression under Article 19(1)(a) of the Constitution. The
fundamental right under Article 19(1)(a) read with statutory right under
Section 79(d) of the RP Act is violated unreasonably if right not to vote
effectively is denied and secrecy is breached. This is how Articles 14 and
19(1)(a) are required to be read for deciding the issue raised in this writ
petition. The casting of the vote is a facet of the right of expression of an
individual and the said right is provided under Article 19(1)(a) of the
Constitution of India (Vide: Association for Democratic Reforms (supra) and
People’s Union for Civil Liberties (supra).
Therefore, any violation of
the said rights gives the aggrieved person the right to approach this Court under
Article 32 of the Constitution of India. In view of the above said decisions as
well as the observations of the Constitution Bench in Kuldip Nayar (supra), a
prima facie case exists for the exercise of jurisdiction of this Court under
Article 32.
25. Apart from the above, we
would not be justified in asking the petitioners to approach the High Court to
vindicate their grievance by way of a writ petition under Article 226 of the
Constitution of India at this juncture. Considering the reliefs prayed for
which relate to the right of a voter and applicable to all eligible voters, it
may not be appropriate to direct the petitioners to go to each and every High
Court and seek appropriate relief. Accordingly, apart from our conclusion on
legal issue, in view of the fact that the writ petition is pending before this
Court for the last more than nine years, it may not be proper to reject the
same on the ground, as pleaded by learned ASG. For the reasons mentioned above,
we reject the contention and hold that this Court is competent to hear the
issues raised in this writ petition filed under Article 32 of the Constitution.
Discussion about the relief
prayed for in the writ petition:
26. We have already quoted
the relevant provisions, particularly, Section 128 of the RP Act, Rules 39, 41,
49M and 49-O of the Rules. It is clear from the above provisions that secrecy
of casting vote is duly recognized and is necessary for strengthening
democracy. We are of the opinion that paragraph Nos. 441, 442 and 452 to 454 of
the decision of the Constitution Bench in Kuldip Nayar (supra), are relevant
for this purpose which is extracted hereinbelow:
“441. Voting at elections to
the Council of States cannot be compared with a general election. In a general
election, the electors have to vote in a secret manner without fear that their
votes would be disclosed to anyone or would result in victimisation. There is
no party affiliation and hence the choice is entirely with the voter. This is
not the case when elections are held to the Council of States as the electors
are elected Members of the Legislative Assemblies who in turn have party affiliations.
442. The electoral systems
world over contemplate variations. No one yardstick can be applied to an
electoral system. The question whether election is direct or indirect and for
which House members are to be chosen is a relevant aspect. All over the world
in democracies, members of the House of Representatives are chosen directly by
popular vote. Secrecy there is a must and insisted upon; in representative
democracy, particularly to the upper chamber, indirect means of election adopted
on party lines is well accepted practice.
452. Parliamentary democracy
and multi-party system are an inherent part of the basic structure of the
Indian Constitution. It is the political parties that set up candidates at an
election who are predominantly elected as Members of the State Legislatures.
The context in which general elections are held, secrecy of the vote is
necessary in order to maintain the purity of the electoral system. Every voter
has a right to vote in a free and fair manner and not disclose to any person how
he has voted. But here we are concerned with a voter who is elected on the
ticket of a political party. In this view, the context entirely changes.
453. That the concept of
“constituency-based representation” is different from “proportional representation”
has been eloquently brought out in United Democratic Movement v. President of the
Republic of South Africa where the question before the Supreme Court was:
whether “floor crossing” was fundamental to the Constitution of South Africa.
In this judgment the concept of proportional representation vis-Ã -vis
constituency-based representation is highlighted…
454. The distinguishing
feature between “constituency-based representation” and “proportional representation”
in a representative democracy is that in the case of the list system of
proportional representation, members are elected on party lines. They are
subject to party discipline. They are liable to be expelled for breach of
discipline. Therefore, to give effect to the concept of proportional
representation, Parliament can suggest “open ballot”. In such a case, it cannot
be said that “free and fair elections” would stand defeated by “open ballot”.
As stated above, in a constituency-based election it is the people who vote
whereas in proportional representation it is the elector who votes. This
distinction is indicated also in the Australian judgment in R. v. Jones.
In constituency-based
representation, “secrecy” is the basis whereas in the case of proportional representation
in a representative democracy the basis can be “open ballot” and it would not violate
the concept of “free and fair elections”, which concept is one of the pillars
of democracy.”
27. The above discussion in
the cited paragraphs makes it clear that in direct elections to Lok Sabha or State
Legislatures, maintenance of secrecy is a must and is insisted upon all over
the world in democracies where direct elections are involved to ensure that a
voter casts his vote without any fear of being victimized if his vote is
disclosed.
28. After referring to
Section 128 of the RP Act and Rule 39 of the Rules, this Court in S. Raghbir
Singh Gill vs. S. Gurcharan Singh Tohra and Others 1980 (Supp) SCC 53 held as
under:
“14…Secrecy of ballot can be
appropriately styled as a postulate of constitutional democracy. It enshrines a
vital principle of parliamentary institutions set up under the Constitution. It
subserves a very vital public interest in that an elector or a voter should be
absolutely free in exercise of his franchise untrammelled by any constraint,
which includes constraint as to the disclosure. A remote or distinct
possibility that at some point a voter may under a compulsion of law be forced to
disclose for whom he has voted would act as a positive constraint and check on
his freedom to exercise his franchise in the manner he freely chooses to
exercise. Therefore, it can be said with confidence that this postulate of
constitutional democracy rests on public policy.”
29. In the earlier part of
this judgment, we have referred to Article 21(3) of the Universal Declaration
of Human Rights and Article 25(b) of the International Covenant on Civil and
Political Rights, which alsorecognize the right of secrecy.
30. With regard to the first
prayer of the petitioners, viz., extension of principle of secrecy of ballot to
those voters who decide not to vote, Mr. Malhotra, learned ASG submitted that
principle of secrecy of ballot is extended only to those voters who have cast
their votes in favour of one or the other candidates, but the same, in no
manner, can be read as extended to even those voters who have not voted in the election.
He further pointed out that the principle of secrecy of ballot pre-supposes
validly cast vote and the object of secrecy is to assure a voter to allow him
to cast his vote without any fear and in no manner it will be disclosed that in
whose favour he has voted or he will not be compelled to disclose in whose favour
he voted. The pith and substance of his argument is that secrecy of ballot is a
principle which has been formulated to ensure a voter (who has exercised his
right to vote) that in no case it shall be known to the candidates or their
representatives that in whose favour a particular voter has voted so that he
can exercise his right to vote freely and fearlessly. The stand of the Union of
India as projected by learned ASG is that the principle of secrecy of ballot is
extended only to those voters who have cast their vote and the same in no
manner can be extended to those who have not voted at all.
31. Right to vote as well as
right not to vote have been statutorily recognized under Section 79(d) of the RP
Act and Rules 41(2) & (3) and 49-O of the Rules respectively. Whether a
voter decides to cast his vote or decides not to cast his vote, in both cases,
secrecy has to be maintained. It cannot be said that if a voter decides to cast
his vote, secrecy will be maintained under Section 128 of the RP Act read with
Rules 39 and 49M of the Rules and if in case a voter decides not to cast his
vote, secrecy will not be maintained.
Therefore, a part of Rule
49-O read with Form 17-A, which treats a voter who decides not to cast his vote
differently and allows the secrecy to be violated, is arbitrary, unreasonable
and violative of Article 19 and is also ultra vires Sections 79(d) and 128 of
the RP Act.
32. As regards the question
as to whether the right of expression under Article 19 stands infringed when secrecy
of the poll is not maintained, it is useful to refer S. Raghbir Singh (supra)
wherein this Court deliberated on the interpretation of Section 94 of the RP
Act which mandates that no elector can be compelled as a witness to disclose
his vote. In that case, this Court found that the “secrecy of ballots constitutes
a postulate of constitutional democracy…A remote or distinct possibility that
the voter at some point of time may under a compulsion of law be forced to
disclose for whom he has voted would act as a positive constraint and check on
his freedom to exercise his franchise in the manner he freely chooses to
exercise”. Secrecy of ballot, thus, was held to be a privilege granted in
public interest to an individual.
It is pertinent to note that
in the said case, the issue of the disclosure by an elector of his vote arose
in the first place because there was an allegation that the postal ballot of an
MLA was tampered with to secure the victory of one of the candidates to the
Rajya Sabha. Therefore, seemingly there was a conflict between the “fair vote”
and “secret ballot”.
33. In Kuldip Nayar (supra),
this Court held that though secrecy of ballots is a vital principle for
ensuring free and fair elections, the higher principle is free and fair
elections. However, in the same case, this Court made a copious distinction
between “constituency based representation” and “proportional representation”.
It was held that while in the former, secrecy is the basis, in the latter the
system of open ballot and it would not be violative of “free and fair
elections”. In the said case, R vs. Jones, (1972) 128 CLR 221 and United
Democractic Movement vs. President of the Republic of South Africa, (2003) 1 SA
495 were also cited with approval.
34. Therefore, in view of
the decisions of this Court in S. Raghubir Singh Gill (supra) and Kuldip Nayar (supra),
the policy is clear that secrecy principle is integral to free and fair
elections which can be removed only when it can be shown that there is any
conflict between secrecy and the “higher principle” of free elections. The
instant case concerns elections to Central and State Legislatures that are undoubtedly
“constituency based”. No discernible public interest shall be served by
disclosing the elector’s vote or his identity. Therefore, secrecy is an
essential feature of the “free and fair elections” and Rule 49-O undoubtedly
violates that requirement.
35. In Lily Thomas vs.
Speaker, Lok Sabha, (1993) 4 SCC 234, this Court held that “voting is a formal expression
of will or opinion by the person entitled to exercise the right on the subject
or issue in question” and that “right to vote means right to exercise the right
in favour of or against the motion or resolution. Such a right implies right to
remain neutral as well”.
36. In view of the same,
this Court also referred to the Practice and Procedure of the Parliament for
voting which provides for three buttons: viz., AYES, NOES and ABSTAIN whereby a
member can abstain or refuse from expressing his opinion by casting vote in
favour or against the motion. The constitutional interpretation given by this
Court was based on inherent philosophy of parliamentary sovereignty.
37. A perusal of Section
79(d) of the RP Act, Rules 41(2) & (3) and Rule 49-O of the Rules make it
clear that a right not to vote has been recognized both under the RP Act and
the Rules. A positive ‘right not to vote’ is a part of expression of a voter in
a parliamentary democracy and it has to be recognized and given effect to in
the same manner as ‘right to vote’. A voter may refrain from voting at an
election for several reasons including the reason that he does not consider any
of the candidates in the field worthy of his vote. One of the ways of such
expression may be to abstain from voting, which is not an ideal option for a conscientious
and responsible citizen. Thus, the only way by which it can be made effectual
is by providing a button in the EVMs to express that right. This is the basic
requirement if the lasting values in a healthy democracy have to be sustained,
which the Election Commission has not only recognized but has also asserted.
38. The Law Commission of
India, in its 170th Report relating to Reform of the Electoral Laws recommended
for implementation of the concept of negative vote and also pointed out its
advantages.
39. In India, elections
traditionally have been held with ballot papers. As explained by the Election Commission,
from 1998 onwards, the Electronic Voting Machines (EVMs) were introduced on a
large scale. Formerly, under the ballots paper system, it was possible to
secretly cast a neutral/negative vote by going to the polling booth, marking
presence and dropping one’s ballot in the ballot box without making any mark on
the same. However, under the system of EVMs, such secret neutral voting is not
possible, in view of the provision of Rule 49B of the Rules and the design of
the EVM and other related voting procedures. Rule 49B of the Rules mandates
that the names of the candidates shall be arranged on the balloting unit in the
same order in which they appear in the list of contesting candidates and there
is no provision for a neutral button.
40. It was further clarified
by the Election Commission that EVM comprises of two units, i.e. control and balloting
units, which are interconnected by a cable. While the balloting unit is placed
in a screened enclosure where an elector may cast his vote in secrecy, the
control unit remains under the charge of the Presiding Officer and so placed
that all polling agents and others present have an unhindered view of all the
operations. The balloting unit, placed inside the screened compartment at the
polling station gets activated for recording votes only when the button marked
“Ballot” on the control unit is pressed by the presiding officer/polling
officer in charge. Once the ballot button is pressed, the Control unit emanates
red light while the ballot unit which has been activated to receive the vote
emanates green light. Once an elector casts his vote by pressing balloting
button against the candidate of his choice, he can see a red light glow against
the name and symbol of that candidate and a high-pitched beep sound emanates
from the machine. Upon such casting of vote, the balloting unit is blocked,
green light emanates on the control unit, which is in public gaze, and the high
pitched beep sound is heard by one and all. Thereafter, the EVM has to
re-activate for the next elector by pressing “ballot button”. However, should
an elector choose not to cast his vote in favour of any of the candidates
labeled on the EVM, and consequently, not press any of the labeled button
neither will the light on the control unit change from red to green nor will the
beep sound emanate. Hence, all present in the poll booth at the relevant time
will come to know that a vote has not been cast by the elector.
41. Rule 49-O of the Rules
provides that if an elector, after his electoral roll number has been entered
in the register of electors in Form 17-A, decides not to record his vote on the
EVM, a remark to this effect shall be made against the said entry in Form 17-A
by the Presiding Officer and signature/thumb impression of the elector shall be
obtained against such remark. As is apparent, mechanism of casting vote through
EVM and Rule 49-O compromise on the secrecy of the vote as the elector is not
provided any privacy when the fact of the neutral/negative voting goes into
record.
42. Rules 49A to 49X of the
Rules come under Chapter II of Part IV of the Rules. Chapter II deals with voting
by Electronic Voting Machines only. Therefore, Rule 49-O, which talks about
Form 17-A, is applicable only in cases of voting by EVMs. The said Chapter was
introduced in the Rules by way of an amendment dated 24.03.1992. Voting by
ballot papers is governed by Chapter I of Part IV of the Rules.
Rule 39 talks about secrecy
while voting by ballot and Rule 41 talks about ballot papers. However, as said earlier,
in the case of voting by ballot paper, the candidate always had the option of
not putting the cross mark against the names of any of the candidates and
thereby record his disapproval for all the candidates in the fray. Even though
such a ballot paper would be considered as an invalid vote, the voter still had
the right not to vote for anybody without compromising on his/her right of
secrecy. However, with the introduction of EVMs, the said option of not voting
for anybody without compromising the right of secrecy is not available to the
voter since the voting machines did not have ‘None of the Above’ (NOTA) button.
43. It is also pointed out
that in order to rectify this serious defect, on 10.12.2001, the Election Commission
addressed a letter to the Secretary, Ministry of Law and Justice stating, inter
alia, that the “electoral right” under Section 79(d) includes a right not to
cast vote and sought to provide a panel in the EVMs so that an elector may
indicate that he does not wish to vote for any of the aforementioned candidates.
The letter also stated that such number of votes expressing dissatisfaction
with all the candidates may be recorded in a result sheet. It is also brought
to our notice that no action was taken on the said letter dated 10.12.2001.
44. The Election Commission
further pointed out that in the larger interest of promoting democracy, a provision
for “None of the Above” or “NOTA” button should be made in the EVMs/ ballot
papers. It is also highlighted that such an action, apart from promoting free
and fair elections in a democracy, will provide an opportunity to the elector
to express his dissent/disapproval against the contesting candidates and will
have the benefit of reducing bogus voting.
45. Democracy and free
elections are part of the basic structure of the Constitution. In Indira Nehru Gandhi
vs. Raj Narain, 1975 Supp 1 SCC 198, Khanna, J., held that democracy postulates
that there should be periodic elections where the people should be in a
position to re-elect their old representatives or change the representatives or
elect in their place new representatives. It was also held that democracy can
function only when elections are free and fair and the people are free to vote
for the candidates of their choice. In the said case, Article 19 was not in
issue and the observations were in the context of basic structure of the
Constitution. Thereafter, this Court reiterated that democracy is the basic
structure of the Constitution in Mohinder Singh Gill and Another vs. Chief
Election Commissioner, New Delhi and Others, (1978) 1 SCC 405 and Kihoto
Hollohon vs. Zachillhu and Others, 1992 (Supp) 2 SCC 651.
46. In order to protect the
right in terms of Section 79(d) and Rule 49- O, viz., “right not to vote”, we
are of the view that this Court is competent/well within its power to issue
directions that secrecy of a voter who decides not to cast his vote has to be
protected in the same manner as the Statute has protected the right of a voter
who decides to cast his vote in favour of a candidate. This Court is also
justified in giving such directions in order to give effect to the right of
expression under Article 19(1)(a) and to avoid any discrimination by directing
the Election Commission to provide NOTA button in the EVMs.
47. With regard to the
above, Mr. Malhotra, learned ASG, by drawing our attention to Section 62 of the
RP Act, contended that this Section enables a person to cast a vote and it has
no scope for negative voting. Section 62(1) of the RP Act reads as under:
“62. Right to vote.(1) No
person who is not, and except as expressly provided by this Act, every person
who is, for the time being entered in the electoral roll of any constituency
shall be entitled to vote in that constituency.”
48. Mr. Malhotra, learned ASG
has also pointed out that elections are conducted to fill a seat by electing a person
by a positive voting in his favour and there is no concept of negative voting
under the RP Act. According to him, the Act does not envisage that a voter has
any right to cast a negative vote if he does not like any of the candidates.
Referring to Section 2(d) of the RP Act, he asserted that election is only a means
of choice or election between various candidates to fill a seat. Finally, he
concluded that negative voting (NOTA) has no legal consequence and there shall
be no motivation for the voters to travel to the polling booth and reject all
the candidates, which would have the same effect of not going to the polling station
at all.
49. However,
correspondingly, we should also appreciate that the election is a mechanism,
which ultimately represents the will of the people. The essence of the
electoral system should be to ensure freedom of voters to exercise their free
choice. Article 19 guarantees all individuals the right to speak, criticize,
and disagree on a particular issue. It stands on the spirit of tolerance and
allows people to have diverse views, ideas and ideologies. Not allowing a
person to cast vote negatively defeats the very freedom of expression and the
right ensured in Article 21 i.e., the right to liberty.
50. Eventually, voters’
participation explains the strength of the democracy. Lesser voter
participation is the rejection of commitment to democracy slowly but definitely
whereas larger participation is better for the democracy. But, there is no
yardstick to determine what the correct and right voter participation is. If introducing
a NOTA button can increase the participation of democracy then, in our cogent
view, nothing should stop the same. The voters’ participation in the election
is indeed the participation in the democracy itself. Non-participation causes
frustration and disinterest, which is not a healthy sign of a growing democracy
like India. Conclusion:
51. Democracy being the
basic feature of our constitutional set up, there can be no two opinions that
free and fair elections would alone guarantee the growth of a healthy democracy
in the country. The ‘Fair’ denotes equal opportunity to all people. Universal
adult suffrage conferred on the citizens of India by the Constitution has made
it possible for these millions of individual voters to go to the polls and thus
participate in the governance of our country. For democracy to survive, it is
essential that the best available men should be chosen as people’s representatives
for proper governance of the country. This can be best achieved through men of
high moral and ethical values, who win the elections on a positive vote. Thus
in a vibrant democracy, the voter must be given an opportunity to choose none
of the above (NOTA) button, which will indeed compel the political parties to
nominate a sound candidate. This situation palpably tells us the dire need of
negative voting.
52. No doubt, the right to
vote is a statutory right but it is equally vital to recollect that this
statutory right is the essence of democracy. Without this, democracy will fail
to thrive. Therefore, even if the right to vote is statutory, the significance
attached with the right is massive. Thus, it is necessary to keep in mind these
facets while deciding the issue at hand.
53. Democracy is all about
choice. This choice can be better expressed by giving the voters an opportunity
to verbalize themselves unreservedly and by imposing least restrictions on
their ability to make such a choice. By providing NOTA button in the EVMs, it
will accelerate the effective political participation in the present state of
democratic system and the voters in fact will be empowered. We are of the
considered view that in bringing out this right to cast negative vote at a time
when electioneering is in full swing, it will foster the purity of the
electoral process and also fulfill one of its objective, namely, wide
participation of people.
54. Free and fair election
is a basic structure of the Constitution and necessarily includes within its
ambit the right of an elector to cast his vote without fear of reprisal, duress
or coercion. Protection of elector’s identity and affording secrecy is
therefore integral to free and fair elections and an arbitrary distinction between
the voter who casts his vote and the voter who does not cast his vote is
violative of Article 14. Thus, secrecy is required to be maintained for both
categories of persons.
55. Giving right to a voter
not to vote for any candidate while protecting his right of secrecy is
extremely important in a democracy. Such an option gives the voter the right to
express his disapproval with the kind of candidates that are being put up by
the political parties. When the political parties will realize that a large
number of people are expressing their disapproval with the candidates being put
up by them, gradually there will be a systemic change and the political parties
will be forced to accept the will of the people and field candidates who are
known for their integrity.
56. The direction can also
be supported by the fact that in the existing system a dissatisfied voter ordinarily
does not turn up for voting which in turn provides a chance to unscrupulous
elements to impersonate the dissatisfied voter and cast a vote, be it a
negative one. Furthermore, a provision of negative voting would be in the
interest of promoting democracy as it would send clear signals to political parties
and their candidates as to what the electorate think about them.
57. As mentioned above, the
voting machines in the Parliament have three buttons, namely, AYES, NOES, and
ABSTAIN. Therefore, it can be seen that an option has been given to the members
to press the ABSTAIN button. Similarly, the NOTA button being sought for by the
petitioners is exactly similar to the ABSTAIN button since by pressing the NOTA
button the voter is in effect saying that he is abstaining from voting since he
does not find any of the candidates to be worthy of his vote.
58. The mechanism of
negative voting, thus, serves a very fundamental and essential part of a
vibrant democracy. The following countries have provided for
neutral/protest/negative voting in their electoral systems:
|
Sl. No.
|
Name of the Country
|
Method of Voting
|
Form of Negative Vote
|
|
1.
|
France
|
Electronic
|
NOTA
|
|
2.
|
Belgium
|
Electronic
|
NOTA
|
|
3.
|
Brazil
|
Ballot Paper
|
NOTA
|
|
4.
|
Greece
|
Ballot Paper
|
NOTA
|
|
5.
|
Ukraine
|
Ballot Paper
|
NOTA
|
|
6.
|
Chile
|
Ballot Paper
|
NOTA
|
|
7.
|
Bangladesh
|
Ballot Paper
|
NOTA
|
|
8.
|
State of Nevada, USA
|
Ballot Paper
|
NOTA
|
|
9.
|
Finland
|
Ballot Paper
|
Blank Vote
and/or ‘write in*’
|
|
10.
|
Sweden
|
Ballot Paper
|
Blank Vote
and/or ‘write in*’
|
|
11.
|
United States of America
|
Electronic/Ballot
(Depending on
State)
|
Blank Vote
and/or ‘write in*’
|
|
12.
|
Colombia
|
Ballot Paper
|
Blank Vote
|
|
13.
|
Spain
|
Ballot Paper
|
Blank Vote
|
* Write-in’ – The ‘write-in’
form of negative voting allows a voter to cast a vote in favour of any
fictional name/candidate.
59. The Election Commission
also brought to the notice of this Court that the present electronic voting machines
can be used in a constituency where the number of contesting candidates is up
to 64. However, in the event of there being more than 64 candidates in the poll
fray, the conventional system of ballot paper is resorted to. Learned counsel
appearing for the Election Commission also asserted through supplementary
written submission that the Election Commission of India is presently exploring
the possibility of developing balloting unit with 200 panels. Therefore, it was
submitted that if in case this Court decides to uphold the prayers of the
petitioners herein, the additional panel on the balloting unit after the last
panel containing the name and election symbol of the last contesting candidate
can be utilized as the NOTA button. Further, it was explicitly asserted in the
written submission that the provision for the above facility for a negative or
neutral vote can be provided in the existing electronic voting machines without
any additional cost or administrative effort or change in design or technology
of the existing machines. For illustration, if there are 12 candidates
contesting an election, the 13th panel on the balloting unit will contain the
words like “None of the above” and the ballot button against this panel will be
kept open and the elector who does not wish to vote for any of the
abovementioned 12 contesting candidates, can press the button against the 13th
panel and his vote will be accordingly recorded by the control unit. At the
time of the counting, the votes recorded against serial number 13 will indicate
as to how many electors have decided not to vote for any candidate.
60. Taking note of the
submissions of Election Commission, we are of the view that the implementation of
the NOTA button will not require much effort except for allotting the last
panel in the EVM for the same.
61. In the light of the
above discussion, we hold that Rules 41(2) & (3) and 49-O of the Rules are
ultra vires Section 128 of the RP Act and Article 19(1)(a) of the Constitution
to the extent they violate secrecy of voting. In view of our conclusion, we
direct the Election Commission to provide necessary provision in the ballot
papers/EVMs and another button called “None of the Above” (NOTA) may be
provided in EVMs so that the voters, who come to the polling booth and decide
not to vote for any of the candidates in the fray, are able to exercise their
right not to vote while maintaining their right of secrecy. Inasmuch as the
Election Commission itself is in favour of the provision for NOTA in EVMs, we
direct the Election Commission to implement the same either in a phased manner
or at a time with the assistance of the Government of India. We also direct the
Government of India to provide necessary help for implementation of the above
direction. Besides, we also direct the Election Commission to undertake awareness
programmes to educate the masses.
62. The writ petition is
disposed of with the aforesaid directions.
