2013 (10) TMI 1154 - SC - Indian Laws

Right to not to vote - None of the Above (NOTA) option - Constitutional validity of Rules 41(2) (3) and 49-O of the Conduct of Election Rules 1961 - Violation of the secrecy of voting - Held that - 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 - 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 - 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 - Decided in favour of petitioner.

Summary

Issues Involved:
1. Constitutional validity of Rules 41(2) & (3) and 49-O of the Conduct of Election Rules, 1961.
2. Violation of the secrecy of voting.
3. The right to vote as a fundamental right.
4. Maintainability of the writ petition under Article 32 of the Constitution.

Detailed Analysis:

1. Constitutional Validity of Rules 41(2) & (3) and 49-O of the Conduct of Election Rules, 1961:
The petitioners challenged the constitutional validity of Rules 41(2) & (3) and 49-O of the Conduct of Election Rules, 1961, arguing that these rules violate the secrecy of voting, which is fundamental to free and fair elections. The court examined these rules in detail, particularly focusing on how they handle the situation when a voter decides not to vote. According to Rule 49-O, if an elector decides not to vote, a remark to this effect is made in Form 17-A by the Presiding Officer, which compromises the secrecy of the voter's decision.

2. Violation of the Secrecy of Voting:
The court emphasized the importance of maintaining the secrecy of voting as enshrined in Section 128 of the Representation of the People Act, 1951, and Rules 39 and 49M of the Conduct of Election Rules. The court noted that secrecy is essential for free and fair elections, allowing voters to exercise their franchise without fear of reprisal. The court found that the existing provisions, particularly Rule 49-O, which requires a remark to be made when a voter decides not to vote, violate this principle of secrecy.

3. The Right to Vote as a Fundamental Right:
The court discussed whether the right to vote is a fundamental right or merely a statutory right. Referring to previous judgments, the court reiterated that the right to vote is a statutory right; however, the decision taken by a voter, whether to vote or not, is a form of expression under Article 19(1)(a) of the Constitution. The court held that the right to vote and the right not to vote are both integral to the freedom of expression and must be protected equally.

4. Maintainability of the Writ Petition under Article 32 of the Constitution:
The Union of India argued that the writ petition under Article 32 is not maintainable as the right to vote is not a fundamental right. However, the court held that the right to vote, though statutory, is intertwined with the fundamental right of freedom of expression under Article 19(1)(a). Therefore, any violation of this right gives the aggrieved person the right to approach the court under Article 32. The court also noted that directing the petitioners to approach multiple High Courts would be impractical given the nature of the relief sought, which affects all eligible voters.

Conclusion:
The court declared Rules 41(2) & (3) and 49-O of the Conduct of Election Rules, 1961, as ultra vires to the extent they violate the secrecy of voting. The court directed the Election Commission to provide a "None of the Above" (NOTA) option in Electronic Voting Machines (EVMs) to allow voters to exercise their right not to vote while maintaining their right of secrecy. The court emphasized that this measure would enhance the democratic process by allowing voters to express their disapproval of all candidates, thereby promoting better candidate selection by political parties. The court also directed the Election Commission to undertake awareness programs to educate the public about the NOTA option.