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TMI Blog2013 (10) TMI 1154X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 49O 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 v. Association for Democratic Reforms and Anr. [2002] 5 SCC 294 and People's Union for Civil Liberties v. Union of India [2003] 4 SCC 399 held that even though the judgment in Kuldip Nayar & Ors. v. Union of India & Ors. [2006] 7 SCC 1 did not ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation 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, 49M and 49O of the Rules read 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ster 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fundamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ghosai 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 contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pp. 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 v. 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 unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 also recognize 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertinent 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 v. Jones, [1972] 128 CLR 221 and United Democractic Movement v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 wouid 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fulfil 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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