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SUPREME COURT OF INDIA
P. SATHASIVAM, CJI., RANJANA PRAKASH DESAI, 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 : 27-09-2013
Constitution of India, 1950- Articles 19(1)(a) and 21- Freedom of speech, etc. and Protection of life and personal liberty- 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. (Para 19)
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. (Para 21)
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. (Para 15)
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. 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. (Paras 49, 50)
Constitution of India, 1950- Article 32- 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. 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. (Para 24)
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. (Para 46)
Representation of the People Act, 1951 - Section 128 - Conduct of Election Rules, 1961- Rules Rules 39, 41(2) & (3), 49-O and 49-M - Free and fair elections -Violation of the secrecy of voting- 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. (Para 27)
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. (Para 31)
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. (Para 34)
Representation of the People Act, 1951 - Section 128 - Conduct of Election Rules, 1961- Rules Rules 39, 41(2) & (3), 49-O and 49-M - Free and fair elections - 'right not to vote'- 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. (Para 37)
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. (Para 51)
The mechanism of negative voting, thus, serves a very fundamental and essential part of a vibrant democracy. (Para 58)
Universal Declaration of Human Rights, 1948- Article 21(3) - International Covenant on Civil and Political Rights, 1966- Article 25(b)- Article 21(3) of the Universal Declaration of Human Rights and Article 25(b) of the International Covenant on Civil and Political Rights, also recognize the right of secrecy. (Para 29)
Facts of the Case :
The petitioners preferred a petition under Article 32 of the Constitution of India, for the issuance of a writ or direction(s) of like nature on the ground that though the 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. It was also prayed for a direction to the Election Commission of India-Respondent No. 2, 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.
Findings of the Court :
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. 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.
Result : Petition allowed with specific directions to the Election Commission.
JUDGMENT
P.Sathasivam, CJI.
1) 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 India-Respondent 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 1 8 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 petitioner
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