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Friday, September 27, 2013

Elections - Right of voter to vote none Candidates contested in Elections = None of the Above” (NOTA) may be provided in EVMs so that the voters= 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.- 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.= 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 the above direction. Besides, we also direct the Election Commission to undertake awareness programmes to educate the masses. 62) The writ petition is disposed of with the aforesaid directions.

 published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40835
                                    REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION


                   1 WRIT PETITION (CIVIL) NO. 161 OF 2004




People’s Union for Civil
Liberties & Anr.                                  .... Petitioner (s)

            Versus

Union of India & Anr.                             .... Respondent(s)

                                      2







                               J U D G M E N T


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 128  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 petitioners is that though right not to vote  is  recognized
by Rules 41 and 49-O of the Rules and is also  a  part  of  the  freedom  of
expression of a voter, if a voter chooses to exercise  the  said  right,  it
has to be kept secret.  Learned senior counsel further submitted  that  both
the above provisions, to the extent of such violation of the secrecy  clause
are not only ultra vires but also contrary to Section 128  of  the  RP  Act,
Rules 39 and 49-M of the Rules as well as Articles 19(1)(a) and  21  of  the
Constitution.


8)    On the other hand, Mr. P.P.  Malhotra,  learned  Additional  Solicitor
General appearing for the Union of India 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  which  has
been formulated to ensure  that  in  no  case  it  shall  be  known  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 49-O 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” (NOTA) in the Electronic Voting Machines (EVMs)  so  that  the
voters who come to the polling booth and decide not to vote for any  of  the
candidates, are able to exercise their right not to vote  while  maintaining
their right of secrecy.


11)   We have carefully considered the rival  submissions  and  perused  the
relevant provisions of the RP Act and the Rules.


Discussion:


12)   In order to answer the above contentions, it is vital to refer to  the
relevant provisions of the RP Act and the Rules.  Sections 79(d) and 128  of
the RP Act read as under:


      “79(d)--“electoral right” means the right of a person to stand or  not
      to stand as,  or  to  withdraw  or  not  to  withdraw  from  being,  a
      candidate, or to vote or refrain from voting at an election.


      128 - Maintenance of secrecy  of  voting--(1)  Every  officer,  clerk,
      agent or other person who performs any duty  in  connection  with  the
      recording or counting of votes at an election shall maintain, and  aid
      in maintaining, the secrecy of the voting and shall  not  (except  for
      some purpose authorized by or under any law) communicate to any person
      any information 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, 49-M and 49-O of the Rules read as 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 another ballot paper, and the ballot paper so returned  and  the
      counterfoil of such ballot paper shall be marked  "Spoilt:  cancelled"
      by the presiding officer.


      (2) If an elector 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  intends  to
      vote; and


      (c) come out of the voting compartment and leave the polling station.


      (4) Every elector shall vote without undue delay.


      (5) No elector shall be allowed to enter the voting  compartment  when
      another elector is inside it.


      (6) If an elector who has been permitted to vote  under  rule  49L  or
      rule 49P refuses after warning  given  by  the  presiding  officer  to
      observe the procedure laid down in sub-rule (3) of the said rules, the
      presiding officer or a polling officer  under  the  direction  of  the
      presiding officer shall not allow such elector to vote.


      (7) Where an elector is not allowed to  vote  under  sub-rule  (6),  a
      remark to the effect that voting procedure has been violated shall  be
      made against the elector's name in the register 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  mentioned  in  article   2   and   without
      unreasonable restrictions:


      (a) ***     ***        ***;


      (b) To vote and to be elected  at  genuine  periodic  elections  which
      shall be by universal and equal suffrage and shall be held  by  secret
      ballot, guaranteeing the free expression of the will of the electors;”


14)    Articles  19(1)(a)  and  21  of  the  Constitution,  which  are  also
pertinent for this matter, are as under:


      “19 - Protection of certain rights regarding freedom of speech, etc.--
       (1) All citizens shall have the right-


      (a) to freedom of speech and expression;


      xxxxx


      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…………

|Sl.  |Sl. No. of      |Details of the     |Signature/    |Remarks  |
|No.  |elector in the  |document produced  |Thumb         |         |
|     |electoral roll  |by the elector in  |impression of |         |
|     |                |proof of his/ her  |elector       |         |
|     |                |identification     |              |         |
|(1)  |(2)             |(3)                |(4)           |(5)      |
|1.   |                |                   |              |         |
|2.   |                |                   |              |         |
|3.   |                |                   |              |         |
|4.   |                |                   |              |         |


etc.




                                  Signature of the Presiding Officer”





16)   Before elaborating the contentions relating to  the  above  provisions
with reference to the secrecy of voting, let us first consider the issue  of
maintainability of the Writ Petition as raised by the Union  of  India.   In
the present Writ Petition, which is of the 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 fundamental right, the present Writ  Petition  under  Article  32  is  not
maintainable.  It is the specific stand of the Union of India that right  to
vote is not a fundamental  right  but  merely  a  statutory  right.   It  is
further pointed out that this Court, in Para 20 of the referral order  dated
23.02.2009, reported in (2009) 3 SCC 200,  observed  that  since  in  Kuldip
Nayar (supra), the judgments of this Court  in  Association  for  Democratic
Reforms (supra) and People’s Union for  Civil  Liberties  (supra)  have  not
been specifically overruled which tend to create a doubt whether  the  right
to vote is a fundamental right or not and referred  the  same  to  a  larger
Bench stating that the issue requires clarity.  In view  of  the  reference,
we have to decide:


(i)   Whether there is any doubt or confusion with regard to the right of  a
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. Debi 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 right."


      With great reverence to the eminent Judges, I would  like  to  clarify
      that the right to vote, if not a fundamental  right,  is  certainly  a
      constitutional right. The right originates from the  Constitution  and
      in accordance with the constitutional  mandate  contained  in  Article
      326, the 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, in their  separate  but  concurring
judgments, have taken the pains to specifically  distinguish  between  right
to vote and freedom of voting as a species  of  freedom  of  expression.  In
succinct, the ratio of the judgment was that 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.


20)   As a result, the  judgments  in  Association  for  Democratic  Reforms
(supra) and People’s Union for Civil Liberties (supra)  have  not  disturbed
the position that right to vote is a statutory right.   Both  the  judgments
have only added that the right to know the background of a  candidate  is  a
fundamental right of a voter so that he can  take  a  rational  decision  of
expressing himself  while  exercising  the  statutory  right  to  vote.   In
People’s Union for Civil Liberties (supra), Shah 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 participate and choose a  candidate  at
      an election is distinct from exercise of his right as a voter which is
      to be regulated by statutory law on the election like the RP Act…”






In view of the above, Para 362 in Kuldip 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 Ghosal 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 contrary.  In view of  the
whole debate of whether these two  decisions  were  overruled  or  discarded
because of the opening line in Para 362 of Kuldip Nayar  (supra)  i.e.,  “we
do not agree with the above submissions…” we are of the  opinion  that  this
line must be read as a whole and not in isolation.  The  contention  of  the
petitioners in Kuldip Nayar (supra)  was  that  majority  view  in  People’s
Union  for  Civil  Liberties  (supra)  held  that  right  to   vote   is   a
Constitutional right besides that it is also a facet  of  fundamental  right
under Article 19(1)(a) of the Constitution. It is this contention  on  which
the Constitution Bench did not agree too in the opening  line  in  para  362
and thereafter went on to clarify that in fact in People’s Union  for  Civil
Liberties (supra), a fine distinction was drawn between the  right  to  vote
and the freedom of voting as a  species  of  freedom  of  expression.  Thus,
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. 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 vs. Returning officer,  1952  SCR
218, Jamuna Prasad Mukhariya vs. Lachhi Ram, 1955 (1)  SCR  608,  University
of Delhi vs. Anand Vardhan Chandal, (2000) 10 SCC 648, Kuldip Nayar  (supra)
and K. Krishna Murthy (Dr.) vs. Union of India, (2010) 7  SCC  202,  wherein
it has been held that the right to vote is not a fundamental  right  but  is
merely a statutory right.


23)   In Kochunni vs. State of Madras, 1959 (2) Supp. 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  vs.
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 under Article  32  of  the
Constitution of India. In view of the above said decisions as  well  as  the
observations of the Constitution Bench in  Kuldip  Nayar  (supra),  a  prima
facie case exists for the exercise  of  jurisdiction  of  this  Court  under
Article 32.


25)   Apart from the  above,  we  would  not  be  justified  in  asking  the
petitioners to approach the High Court to vindicate their grievance  by  way
of a writ petition under Article 226 of the Constitution of  India  at  this
juncture.  Considering the reliefs prayed for which relate to the  right  of
a voter and applicable to all eligible voters, it may not be appropriate  to
direct the petitioners  to  go  to  each  and  every  High  Court  and  seek
appropriate relief.  Accordingly, apart from our conclusion on legal  issue,
in view of the fact that the writ petition is pending before this Court  for
the last more than nine years, it may not be proper to reject  the  same  on
the ground, as pleaded by learned ASG.  For the reasons mentioned above,  we
reject the 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. The electoral systems world over contemplate variations.  No  one
      yardstick can be applied to an electoral system. The question  whether
      election is direct or indirect and for 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 Democratic Movement v. President of the Republic
      of South Africa where the  question  before  the  Supreme  Court  was:
      whether “floor crossing” was fundamental to the Constitution of  South
      Africa. In this judgment the concept  of  proportional  representation
      vis-à-vis constituency-based representation is highlighted…


      454.   The   distinguishing   feature   between    “constituency-based
      representation” and “proportional representation” in a  representative
      democracy is that in the case  of  the  list  system  of  proportional
      representation, members are elected on party lines. They  are  subject
      to party discipline. They are liable to  be  expelled  for  breach  of
      discipline. Therefore, to give effect to the concept  of  proportional
      representation, Parliament can suggest “open ballot”. In such a  case,
      it cannot be said that “free and fair elections” would stand  defeated
      by “open ballot”. As stated above, in a constituency-based election it
      is the people who vote whereas in proportional  representation  it  is
      the elector who votes. This  distinction  is  indicated  also  in  the
      Australian  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 vs. 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  any
      constraint, which includes constraint as to the disclosure.  A  remote
      or distinct possibility that  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 fear and in no manner it will be disclosed  that  in  whose
favour he has voted or he will not be compelled to disclose in whose  favour
he voted.  The pith and substance of his argument is that secrecy of  ballot
is a principle which  has  been  formulated  to  ensure  a  voter  (who  has
exercised his right to vote) that in no  case  it  shall  be  known  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.
The stand of the Union of India as projected by  learned  ASG  is  that  the
principle of secrecy of ballot is extended only to  those  voters  who  have
cast their vote and the same in no manner can be extended to those who  have
not voted at all.


31)   Right to vote as well as right  not  to  vote  have  been  statutorily
recognized under Section 79(d) of the RP Act and Rules 41(2) & (3) and  49-O
of the Rules respectively.  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.


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”.  Secrecy of ballot, thus, was held to be a privilege  granted  in
public interest to an individual.  It is pertinent 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 vs. Jones, (1972) 128 CLR 221 and United  Democractic  Movement
vs. 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  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.


35)   In Lily Thomas vs. Speaker, Lok Sabha, (1993) 4 SCC  234,  this  Court
held that “voting is a formal expression of will or opinion  by  the  person
entitled to exercise the right on the subject  or  issue  in  question”  and
that “right to vote means right to  exercise  the  right  in  favour  of  or
against the motion or resolution.  Such a  right  implies  right  to  remain
neutral as well”.


36)   In view of the same, this Court also  referred  to  the  Practice  and
Procedure of the Parliament for voting which  provides  for  three  buttons:
viz., AYES, NOES and ABSTAIN whereby a member can  abstain  or  refuse  from
expressing 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 Report  relating  to  Reform
of the Electoral Laws recommended  for  implementation  of  the  concept  of
negative vote and 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  the  Presiding  Officer  and  so
placed that all polling agents and others present have  an  unhindered  view
of all the operations.  The  balloting  unit,  placed  inside  the  screened
compartment at the polling station gets activated for recording  votes  only
when the button marked “Ballot” on  the  control  unit  is  pressed  by  the
presiding officer/polling officer in charge.   Once  the  ballot  button  is
pressed, the Control unit emanates red light while  the  ballot  unit  which
has been activated to receive  the  vote  emanates  green  light.   Once  an
elector casts his vote by pressing balloting button  against  the  candidate
of his choice, he can see a red light glow against the name  and  symbol  of
that candidate and a high-pitched beep  sound  emanates  from  the  machine.
Upon such casting of vote,  the  balloting  unit  is  blocked,  green  light
emanates on the control unit, which is in public gaze, and the high  pitched
beep sound is heard by one and all.  Thereafter, the EVM has to  re-activate
for the next elector  by  pressing  “ballot  button”.   However,  should  an
elector choose not to cast his vote in  favour  of  any  of  the  candidates
labeled on the EVM, and consequently, not press any of  the  labeled  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  Rules  by
way of an amendment dated 24.03.1992.  Voting by ballot papers  is  governed
by Chapter I of Part IV of the Rules.  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 would 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  number  of  votes  expressing  dissatisfaction  with   all   the
candidates may be recorded in a result sheet.  It is  also  brought  to  our
notice that no action was taken on the said letter dated 10.12.2001.


44)   The Election  Commission  further  pointed  out  that  in  the  larger
interest of promoting democracy, a provision for  “None  of  the  Above”  or
“NOTA” button should be made  in  the  EVMs/  ballot  papers.   It  is  also
highlighted that  such  an  action,  apart  from  promoting  free  and  fair
elections in a democracy, will provide an  opportunity  to  the  elector  to
express his dissent/disapproval against the contesting candidates  and  will
have the benefit of reducing bogus voting.


45) Democracy and free elections are part of  the  basic  structure  of  the
Constitution.  In Indira Nehru Gandhi vs. Raj Narain, 1975 Supp 1  SCC  198,
Khanna, J., held that democracy postulates that  there  should  be  periodic
elections where the people should be in a position  to  re-elect  their  old
representatives or change the representatives or elect in  their  place  new
representatives.  It was also held that democracy  can  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  vs.
Chief Election Commissioner, New Delhi and Others,  (1978)  1  SCC  405  and
Kihoto Hollohon vs. 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  drawing  our
attention to Section 62 of the RP Act, contended that this  Section  enables
a person to cast a vote and it has 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 represents the  will  of  the  people.  The
essence of the electoral system should be to ensure  freedom  of  voters  to
exercise their free choice. 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.


50)    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.


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  democracy.
Without this, democracy will fail to thrive. Therefore, even  if  the  right
to vote is statutory, 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 fulfill 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 vote is violative of Article  14.  Thus,
secrecy is required to be maintained for both categories of persons.


55)   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.


56)   The direction can also be supported by the fact that in  the  existing
system a dissatisfied voter ordinarily does not turn up for voting which  in
turn  provides  a  chance  to  unscrupulous  elements  to  impersonate   the
dissatisfied voter and cast a vote, be it a  negative  one.  Furthermore,  a
provision  of  negative  voting  would  be  in  the  interest  of  promoting
democracy as it would send 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.   |Chile                  |Ballot Paper       |NOTA             |
|7.   |Bangladesh             |Ballot Paper       |NOTA             |
|8.   |State of Nevada, USA   |Ballot Paper       |NOTA             |
|9.   |Finland                |Ballot Paper       |Blank Vote and/or|
|     |                       |                   |‘write in*’      |
|10.  |Sweden                 |Ballot Paper       |Blank Vote and/or|
|     |                       |                   |‘write in*’      |
|11.  |United States of       |Electronic/Ballot  |Blank Vote and/or|
|     |America                |(Depending on      |‘write in*’      |
|     |                       |State)             |                 |
|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  above
facility for a negative or neutral vote can  be  provided  in  the  existing
electronic voting machines without any  additional  cost  or  administrative
effort or change in design or technology  of  the  existing  machines.   For
illustration, if there are 12 candidates contesting an  election,  the  13th
panel on the balloting unit will contain the words like “None of the  above”
and the ballot button against this panel will be kept open and  the  elector
who does not wish to vote  for  any  of  the  abovementioned  12  contesting
candidates, can press the button against the 13th panel and  his  vote  will
be accordingly recorded by the control unit. At the time  of  the  counting,
the votes recorded against serial number 13 will indicate  as  to  how  many
electors 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 the  above  direction.
Besides, we also direct  the  Election  Commission  to  undertake  awareness
programmes to educate the masses.


62)   The writ petition is disposed of with the aforesaid directions.

                                  ……….…………………………CJI.


                                       (P. SATHASIVAM)
































                                    ………….…………………………J.


                                      (RANJANA PRAKASH DESAI)







                                  ………….…………………………J.


                                      (RANJAN GOGOI)



NEW DELHI;
SEPTEMBER 27, 2013.
-----------------------
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