TMI Blog2013 (10) TMI 1154X X X X Extracts X X X X X X X X Extracts X X X X ..... ressing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, 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, 49M and 49O 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 49O of the Rules, the right of a voter who decides not to vote has been accepted but the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 49O 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" ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector 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 int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... freedom of speech, etc.- (1) All citizens shall have the right- (a) to freedom of speech and expression; ** ** ** 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 . SI.No. SI. No. of elector in the electoral roll Details of the document produced by the elector in proof of his/ her identification Signature/ Thumb impression of elector Remarks (1) (2) (3) (4) (5) 1. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Debt 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 ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ah 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional 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 v. Returning officer, 1952 SCR 218, Jamuna Prasad Mukhariya v. Lachhi Ram 1955 (1) SCR 608, University of Delhi v. Anand Vardhan Chandal [2000] 10 SCC 648, Kuldip Nayar (supra) and K. Krishna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said 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 are 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ralian 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 v. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 Repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f any of the candidates labelled on the EVM, and consequently, not press any of the labelled 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 Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Chief Election Commissioner, New Delhi and Others, [1978] 1 SCC 405 and Kihoto Hollohon v. 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: S.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. Chil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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