BACKGROUND
This judgment[1] was in a way, a component of the various previous verdicts ruled out by the Supreme Court on the matter of elections. In a former judgment, the SC had put a restriction on people in custody saying that they must not contest in elections. Another verdict by the Apex Court said that if the MPs and MLAs are found guilty of grievous offenses then they would be disqualified. An ordinance was brought up by the government in order to cancel out the verdict of the court which struck down a provision in the electoral law due to which guilty lawmakers were protected from immediate disqualification. Since there existed a number of doubts over the ruling passed in the Kuldip Nayar & Ors. vs. Union of India & Ors[2] case which was also related to a voter’s right, the Apex Court felt that there was a need for a larger bench to adjudicate the matter of negative voting.
RIGHT TO VOTE IN INDIA
The Indian Constitution embodies Democracy as its most important principle and elections are a way to ensure that. We have a government elected ‘for the people, by the people.’ According to our Constitution[3], every citizen of India who is above the age of 18 is conferred the right to vote. All these citizens can cast their votes in national, state, district as well as local government body elections. Every elector or voter is allowed to cast one vote only. This vote can be cast at the voter’s registered constituency. Voter ID Cards are mandatory to be a part of the electoral process. Preventing an individual from voting is against the law unless he/she fulfills the criteria for disqualification.
BRIEF FACTS
This case basically talks about the right of a voter to be provided confidentially while casting his/her vote which also covers the decision of not voting or negative voting. In this case, the People’s Union for Civil Liberties” (PUCL) challenged the constitutional validity of Rules 41(2) & (3) and 49-O of the Conduct of Election Rules, 1961[4] through an Article 32[5] writ petition. This civil rights NGO stated that the provisions under the aforementioned rules violate the secrecy of voting which in turn extinguishes the whole purpose of having free and fair elections in our Country.
ISSUES
The Supreme Court had the following main issues before it:
- If a writ petition issued in a case dealing with a statutory right of voting, is maintainable?
- Whether the rules 41(2)(3) and 49 (O) of the Conduct of Election rules [hereinafter ‘the Rules’], 1961 are in violation of the fundamental rights of a voter?
ARGUMENTS
Petitioner
- In terms of Rule 41(2) of the Rules, There is a right with an electoral that is not to cast a vote but rather still the mystery of his having not cast a vote isn’t kept up with under Rules 41(2) and (3) thereof. In the same way, Rule 49-O of the Rules accepts the choice of not voting however doesn’t maintain the secrecy of the same. If in case, a citizen chooses not to record his vote, a remark with this impact will be made against the entry in Form 17-A by the Presiding Officer, and the mark or thumb impression of the voter will be acquired against such comment. Thus, if an elector chooses not to cast a vote, his record will be kept up with by the Presiding Officer which will accordingly unveil that he has chosen not to cast a vote.
- Even though, “Rules 41 and 49-O[6]” doesn’t allow the right of not to vote and forms a part of his freedom of expression, if someone wants to exercise his right of not to vote then he has to keep it as a secret.
- The petitioners prayed to the Election Commission that they shall issue necessary provisions for the same under Article 324 of the Indian Constitution.[7]
Respondent
- The right to vote is neither a fundamental right nor a constitutional right but is simply a statutory right. Both the Representation of the People Act[8] and the Constitution of India agree to this. Thus, the Writ Petition is not maintainable.
- The decision of the Constitution Bench in Kuldip Nayar & Ors. vs. Union of India &Ors.,[9] the reference was unessential for the same by a larger Bench was unnecessary. Furthermore, in view of the above decision, the earlier two decisions of this Court, viz., “Union of India vs. Association for Democratic Reforms and Anr.;”[10] and “Peoples Union for Civil Liberties vs. Union of India”[11] stood impliedly overruled, so, due to this, a larger Bench was not required.
- The capacity of the Election Commission under Article 324 of the Constitution[12] is adequately wide, yet at the same time, the same can, in no way, be interpreted as to cover those regions, which are now covered by the statutory provisions. The existing provisions are proof of the fact that the principle of ballot secrecy was established to ensure that no information about a voter’s vote will be revealed to the candidates or their representatives, allowing him to exercise his right to vote freely and without fear. This right is conferred upon those voters who have voted so it can’t be bestowed upon the ones who haven’t voted at all.
- “Since Section 2(d) of the Representation of the People Act[13] specifically defines election to mean an election to fill a seat, it cannot be construed as an election not to fill a seat.”[14]
JUDGEMENT
This verdict pronounced by the Supreme Court was an evolution altogether. The Court recognized the fact that the Right to Vote indeed includes the Right to reject[15] and this is enshrined under Freedom of Speech and Expression[16] (Article 19). The Supreme Court had ruled that the NOTA option “may be provided in EVMs” so that voters are able to exercise their “right not to vote while maintaining their right of secrecy”. The election must always be free and fair and this can only happen when the secrecy of the voter’s choice is maintained under all circumstances, even if he/she decides to press the NOTA option, otherwise, it would lead to the violation of Article 14[17],19(1)(a) and 21[18] of the Indian Constitution.
The Judges opined, “When political parties understand that a substantial number of people are expressing dissatisfaction with the candidates, a structural shift will occur, and political parties will be forced to follow the people’s choice and accept it and field candidates who are known for their integrity (emphasis added).”
OVERVIEW OF THE JUDGEMENT
- This judgment was wholly rested on the spirit of democracy. It was well detailed and reasoned out points quite sensibly. Judges realized the importance of the Right to Privacy by ruling out that secrecy of a voter’s vote must always be maintained.
- There are times when a voter likes none of the contesting candidates. The option of NOTA will then provide a voter, the right to reject which the judge said, is a fundamental right. It was sound to rule out that NOTA must be provided because that way, the political parties will put their best candidates forward, and hence, we’ll have the best men in the prominent positions. The judgment proved that the judiciary is the ultimate guardian of an individual’s rights.
- The Court guided the Election Commission to give reexamined guidelines as per the law set down in this judgment.[19]
IMPLEMENTATION OF NOTA
According to the Election Commission of India, all the votes that are cast as NOTA are well counted but they are invalid votes and hence have no effect on the election results. This implies that NOTA isn’t taken into account while calculating the valid votes cast. A separate symbol was provided by the ECI on the last panel EVM machine indicating NOTA. In cases where NOTA votes exceeded the number of votes won by a candidate then the candidate securing the highest number of votes will win the election. There were two State Election Commissions (SEC), who understood the spirit of the judgment and passed commendable orders. First, the SEC of Maharashtra ordered that, if it is discovered during the counting process that NOTA has received the maximum number of valid votes, the election for that particular seat would be annulled and new elections will be held[20]. The SEC of Haryana went even forward and gave the most reasoned order that stated, If all of the contesting candidates earn fewer votes than NOTA, not only will “none of the contesting candidates be deemed elected,” but “all such contesting candidates who secured fewer votes than NOTA shall be ineligible to re-file the nomination/contest the re-election.[21] The ECI and all the other SECs should understand the need of the political scenario and implement the NOTA just as Haryana SEC did otherwise it makes no difference even to have such an option.
Author(s) Name: Rithik Gullaiya (Symbiosis Law School, Noida)
References:
[1] PUCL v. Union of India, (2003 4 SCC 399).
[2] Kuldip Nayar &Ors. vs. Union of India &Ors., [2006] 7 SCC 1.
[3] Article 324, Constitution of India, 1949
[4] The Conduct of Elections Rules, 1961, section 41 (2) and (3) and section 49-O, 1961
[5] Article 32, Constitution of India, 1949
[6] Supra note 4
[7] PUCL v. Union of India, (2003) 4 SCC 399 [7].
[8] The representation of the people (Second amendment and validation) Bill, 2013
[9]Kuldip Nayar &Ors. vs. Union of India &Ors., [2006] 7 SCC 1.
[10]Union of India vs. Association for Democratic Reforms and Anr.,[2002] 5 SCC 294.
[11]Peoples Union for Civil Liberties vs. Union of India, [2003] 4 SCC 399.
[12] Article 324, Constitution of India, 1949
[13] The representation of the people act, 1950, section 2 (d), 1950
[14] PUCL v. Union of India, (2003 4 SCC 399. [8]
[15] PUCL v. Union of India, (2003) 4 SCC 399 [37]
[16] Constitution of India, 1950, art 19
[17] Constitution of India, 1950, art 14
[18] Constitution of India, 1950, art 21
[19] PUCL v. Union of India, (2003) 4 SCC 399 [61]
[20] https://mahasec.maharashtra.gov.in/Site/141801/NOTA—None-of-the-Above
[21] https://www.secharyana.gov.in/web/assets/uploads/2017/02/order%20NOTA%20-%202018.pdf
