Supreme Court of India
PEOPLE'S UNION FOR CIVIL LIBERTIES & ANR.versusUNION OF INDIA & ANR.
- Citation
- 2013 INSC 655
- Decided
- 27 September 2013
- Disposal
- Disposed off
- Bench
- P SATHASIVAM
Holding
Rules 41(2), 41(3) and 49‑0 are ultra vires Section 128 of the Representation of the People Act and Article 19(1)(a) as they breach the secrecy of voting, and the Election Commission must provide a NOTA button in EVMs and ballot papers.
Summary
The Supreme Court entertained a writ petition filed by People's Union for Civil Liberties and others challenging Rules 41(2), 41(3) and 49‑0 of the Conduct of Election Rules, 1961, which required a presiding officer to record a remark and obtain the voter’s signature/thumb impression when the voter chose not to cast a vote. The petitioners argued that this procedure breached the secrecy of voting, violated Articles 19(1)(a) and 14 of the Constitution and was ultra vires Sections 79(d) and 128 of the Representation of the People Act, 1951. The Court held that the right to vote is a statutory right but the decision to vote or not is a facet of the freedom of speech and expression, and secrecy must be maintained for both categories of voters. Consequently, the impugned rules were declared ultra vires, and the Court directed the Election Commission to provide a "None of the Above" (NOTA) button in electronic voting machines and ballot papers, and to undertake awareness programmes. The writ petition was disposed with these directions.
Issues considered
- The constitutional validity of Rules 41(2), 41(3) and 49‑0 of the Conduct of Election Rules, 1961.
- Whether the procedure for a voter who decides not to vote violates the secrecy of ballot protected under Section 128 of the RP Act and Article 19(1)(a).
- Whether the right to not vote is a facet of the fundamental right to freedom of speech and expression.
- Whether the writ petition is maintainable under Article 32 of the Constitution.
- Whether the Supreme Court can direct the Election Commission to introduce a NOTA button in EVMs.
Legislation cited
- Conduct of Election Rules, 1961s. 39, s. 41(2), s. 41(3), s. 49-0, s. 49M
- Representation of the People Act, 1951s. 128, s. 79(d)
Subjects
right to voteright not to votefreedom of expressionArticle 19(1)(a)Article 14secrecy of ballotelectronic voting machineNOTAConduct of Election RulesRepresentation of the People Actbasic structure doctrinefree and fair elections
Judgment
(2013] 12 S.C.R. 283
PEOPLE'S UNION FOR CIVIL LIBERTIES & ANR. A
v.
UNION OF INDIA & ANR.
(Writ Petition (C) No. 161 of 2004)
SEPTEMBER 27, 2013
B
[P. SATHASIVAM, CJI, RANJANA PRAKASH DESAI
AND RANJAN GOGOi, JJ.]
CONSTITUTION OF IND/A, 1950:
c
Art. 19(1)(a) - Freedom of speech and expression --
Decision taken by a voter after verifying the credentials of the
candidate, either to vote or not is a form of expression under
Art.19(1)(a) -- Fundamental right under Art.19(1)(a) read with
statutory right uls. 79(d) of the RP Act is violated unreasonably
0
if right not to vote effectively is denied and secrecy is
breached - Representation of the People Act, 1951 - s. 79(d).
Art. 32 rlw Arts. 19(1)(a) and 14- Writ petition challenging
rr.41(2), (3) and 49-0 of Conduct of Election Rules - Held: Is
maintainable -- Casting of vote is a facet of right of expression E
of an individual under Art.19(1)(a) -- Fundamental right under
Art.19(1)(a) read with statutory right u/s. 79(d) of RP Act is
violated unreasonably if right not to vote effectively is denied
and secrecy is breached, which attracts Art. 14 -- Any violation
of the said rights gives the aggrieved person the right to F
approach Supreme Court under Art.32 and a prima facie case
exists for exercise of jurisdiction under Art. 32 ·_ Besides, it
may not be appropriate to direct the petitioners to go to each
and every High Court and seek appropriate relief -- Therefore,
Supreme Court is competent to hear the issues raised in the G
writ petition filed under Art.32 - Conduct of Election Rules,
1961 - rr. 41 (2), (3) and 49-0.
CONSTITUTIONAL LAW:
283 H
r
284 SUPREME COURT REPORTS [2013] 12 S.C.R.
A Basic structure and Art. 14 of Constitution of India - Held:
Democracy and free and fair election an~ part of the basic
structure of Constitution of India and necessarily include within
its ambit the right of an elector to cast his vote without fear of
reprisal, duress or coercion -- Protection of elector's identity
B and affording secrecy is, therefore, integral to free and fair
elections and an arbitrary distinction betv•een the voter who
casts his vote and the voter who does not cast his vote is
violative of Art. 14 -- Thus, secrecy is required to be
maintained for both categories of persons - Constitution of
c India - Art. 14.
CONDUCT OF ELECTION RULES, 1961:
rr. 41(2), (3) and 49-0 - Held: A part of r.49-0 read with
Form 17-A, which treats a'voter who decides not to cast his
D vote differently and allows the secrecy to be violated, is
arbitrary, unreasonable and violative of Art. 19 and is also
ultra vires ss. 79(d) and 128 of the RP Act- rr.41(2), (3) and
49-0 are ultra vires s.128 of thfi RP Act and Art.19(1)(a) of
the Constitution to the extent they violate secrecy of voting -
E - Election Commission is directed to provide necessary
provision in 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
F exercise their right not to vote, while maintaining their right of
secrecy -- Representation of the People Act, 1951-- ss. 79(d)
and 128 - Constitution of India, 1950 - Art.19(1)(a).
ELECTION LAWS:
G Right to vote and right, after verifying credentials of the
candidate, either to vote or not - Held: Judgments in
Association for Democratic Reforms and PUCL have not
disturbed the position that right to vote is a statutory right --
Both the judgments have only added that the right to know
H the background of a candidate is a fundamental right of a
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 285
OF INDIA
voter so that he can take a rational decision of expressing A
himself while exercising the statutory right to vote -- Ku/dip
Nayar does not overrule the other two decisions rather it only
reaffirms what has already been said by the two decisions.
The instant writ petition was filed challenging the
constitutional validity of rr. 41(2) and (3) and 49-0 of the 8
Conduct of Election Rules, 1961 (the Rules) to the extent
these provisions violate the secrecy of voting. The
petitioners prayed for declaring rr. 41 (2), (3) and 49-0 of
the Rules ultra vires and unconstitutional and also for a
direction to the Election Commission of India-respondent C
No.2, to provide necessary provision in the ballot papers
as well as in the electronic voting machines (EVM) for the
protection of the right of not to vote. An objection was
raised with regard to malntainabillty of the writ petition on
the ground that right to vote was not a fundamental right D
but a statutory right. The Division Bench before which the
matter was Initially listed, felt that even though the
judgment In Ku/dip Nayar" did not overrule or discard the
ratio laid down In Association for Democratic Reforms2 and
People's Union for Civil Liberties3(PUCL), it created a doubt E
In this regard and, therefore, referred the matter to a larger
Bench.
Disposing of the writ petition, the Court
HELD: 1.1. In succinct, the ratio of the judgment in F
PUCL 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 Art. 19(1)(a) of the Constitution.
The judgments in Association for Democratic Reforms G
1. Kuldip Nayar & Ors. vs. Union of India & Ors. 2006 (5) Suppl. SCR 1
2. Union of India vs. Association for Democratic Refonns and Anr. 2002 ( 3)
SCR 696
3. People's Union for Civil Liberties vs. Union of India 2003 (2) SCR 1136 H
286 SUPREME COURT REPORTS [2013) 12 S.C.R.
A and PUCL 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
' he can
candidate is a fundamental right of a voter so that
take a rational decision of expressing himself while
B exercising the statutory right to vote. [Paras 19 and 20]
[304-A-D]
People's Union for Civil Liberties vs. Union of India 2003
=
(2) SCR 1136 (2003) 4 SCC 399; an.d Union of India vs.
C Association for Democratic Reforms and Anr. 2002 (3) SCR
=
696 (2002) 5 sec 294 - referred to.
1.2. After a careful perusal of the verdicts of this
Court in Kuldip Nayar, Association for Democratic
Reforms and PUCL, this Court is of the considered view
D that Kuldip Nayar does not overrule the other two
decisions rather it only reaffirms what has already been
said by the two decisions. The decisions recognize that
right to vote is a statutory right and also that in PUCL it
was held that "a fine distinction was drawn between the
E right to vote and the freedom of voting as •! species of
freedom of expression". Therefore, it cannot be said that
Kuldip Nayar has observed anything to the contrary. This
Court holds that there is no doubt or confusion
persisting in the Constitution Bench judgment in Kuldip
F Nayar and the decisions in Association for Democratic
Reforms and PUCL do not stand impliedly overruled.
[Para 21] [305-E-G; 306-C-D]
Ku/dip Nayar & Ors. vs. Union of India & Ors. 2006 (5)
=
Suppl. SCR 1 (2006) 7 SCC 1 - referred to.
G
2.1. As regards maintainability of the instant writ
petition under Art.32, it is significant to note that the
decision taken by a voter after verifying the credentials
of the candidate either to vote or not is a form of
H expression under Art.19(1)(a) of the Constitution. The
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 287
OF INDIA
fundamental right under Art.19(1)(a) read with statutory A
right u/s.79(d) of the RP Act is violated unreasonably if
right not to vote effectively is denied and secrecy is
breached, which attracts Art. 14. The casting of the vote
is a facet of the right of expression of an individual and
the said right is provided under Art.19(1 )(a) of the B
Constitution. Therefore, any violation of the said rights
gives the aggrieved person the right to approach this
Court under Art.32 and, thus, a prima facie case exists for
the exercise of jurisdiction of this Court under Art.32.
[Para 24] [307-B-F] c
2.2. Besides, 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. Therefore, this Court is competent to hear the D
issues raised in the writ petition filed under Art.32 of the
Constitution. [Para 25] [307-F-H; 308-A]
3.1. In direct elections to Lok Sabha or State
Legislatures, maintenance of secrecy is a must and is E
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. It is clear from s.128 of the RP Act, and rr.
39, 41, 49M and 49-0 of the Rules that secrecy of casting F
vote is duly recognized and is necessary for
strengthening the democracy. However, From the
provisions of rr.41(2) and (3) and r. 49-0, 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 G
Officer and the signature or thumb impression of the
elector shall be obtained against such remark. [Para 7, 26
and 27] [294-H; 308-B-C; 310-B-C]
Ku/dip Nayar & Ors. vs. Union of India & Ors. 2006 (5)
=
Suppl. SCR 1 (2006) 7 SCC 1; and S. Raghbir Singh Gill H
288 SUPREME COURT REPORTS (2013] 12 S.C.R.
A vs. S. Gurcharan Singh Tohra and Others
=
1980 SCR 1302 1980 (Supp) SCC 53'- relied on.
3.2. Chapter II of t~ Rules deals with voting by
Electronic Voting Machines only. Therefore, Rule 49-0,
which talks about· Form 17-A, is applicable only in cases
8
of voting by E:VMs. Rule 49-0 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
bis vote on the EVM, a remark to this effect shall be made
against the said entry in Form 17-A by the Presiding
C Officer and signature/thumb impression of the elector
shall be obtained against such remark. Further, In case
an elector chooses not to cast his vote in favour of any
of the candidates labeled on the EVM, and consequently,
does not press any of the labeled button, neither will the
D light on the control unit change from red to green nor will
the beep sound emanate; and all present in the poll booth '
at the relevant time will come to know that a vote has not
been cast by the elector. Thus, the mechanism of casting
vote through EVM and r. 49-0 compromise on the
E secrecy of the vote as the elector is not provided any
privacy when the fact of the neutral/negative voting goes
into record. [Para 40-42] [315-B-F]
3.3. Voting by ballot papers is governed by Chapter
F I of Part IV of the Rules. Rule 39 talks about secrecy while
voting by ballot and Rule 41 talks about ballot papers.
However, 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
G 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
H
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 289
OF INDIA
compromising the right of secrecy is not available to the A
voter since the voting machines did not have 'None of the
Above' (NOTA) button. [Para 42) [315-F-H; 316~A-B]
3.4. Right to vote as well as right not to vote have
been statutorily recognized u/s.79 (d) of the RP Act and 8
rr. 41 (2) and (3) and 49-0 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. Secrecy is an essential feature of the "free
.and fair elections" and r.49-0 undoubtedly violates that C
requirement. Therefore, a part of r.49-0 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 Art. 19 of the
Constitution and is also ultra vi res ss. 79(d) and 128 of the
RP Act. [Para 31 and 34) [311 ·E-H; 313-A-B] D
Lily Thomas vs. Speaker, Lok Sabha, 1993 (1) Suppl.
=
SCR791 (1993) 4 SCC 234 - referred to
R vs. Jones, (1972) 128 CLR 221 and United E
Democractic Movement vs. President of the Republic of
South Africa, (2003) 1 SA 495- referred to.
3.5. 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 F
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 G
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, H
290 SUPREME COURT REPORTS [2013] 12 S.C.R.
A which the Election Commission has not only recognized
but has also asserted. [Para 37] [313-E-H; 31•,·A]
"Practice and Procedure of Parliament for voting';· and
"Law Commission of India, 170th Report relating to Reform
B of the Electoral Laws" - referred to
4.1. Democracy and free and fair election are part of
the basic structure of the Constitution and necessarily
include within its ambit the right of an elector to cast his
vote without fear of reprisal, duress or coercion.
C 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
Art. 14. Thus, secrecy is required to be maintained for
D 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. [Para 45,
54 and 55] [316-F; 319-F-H; 320-A]
E Indira Nehru Gandhi vs. Raj Narain, 1975 Supp 1 SCC
198; Mohinder Singh Gill and Another vs. Chief Election
Commissioner, New Delhi and Others, 1978 (2) SCR 272 =
(1978) 1 SCC 405 and Kihoto Hol/ohon vs. Zachil/hu and
=
Others, 1992 (1) SCR 686 1992 (Supp) 2 sec 651 - relied
F on.
4.2. In order to protect the right in terms of s.79(d) and
r. 49-0, viz., "right not to vote", 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
G 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 Art.19(1 )(a) and to avoid any
H discrimination by directing the Election Commission to
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 291
OF INDIA
provide "None of the Above" button in the EVMs. [Para A
46] [317-B·D]
4.3. Not allowing a person to cast vote negatively
defeats the very freedom of expression and the right
ensured in Art. 21 i.e., the right to liberty. Thus in a vibrant B
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 the dire need of
negative voting. The mechanism of negative voting, thus, C
serves a very fundamental and essential part of a vibrant
democracy. No doubt, the right to vote is a statutory right
but this statutory right is the essence of democracy. [Para
49, 51, 52 and 58] [318-C; 319·A·B, C; 320-G]
5.1. This Court, therefore, holds that rr. 41(2), (3) and D
49·0 of the Rules are ultra vires s.128 of the RP Act and
Art.19(1 )(a) of the Constitution to the extent they violate
secrecy of voting. The Election Commission is directed
to provide necessary provision in the ballot papers/EVMs
and another button called "None of the Above" (NOTA) E
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 exeTcise their right not
to vote while maintaining their right of secrecy. Inasmuch
as the Election Commission itself is in favour of the F
provision for NOTA in EVMs, it is directed to implement
the same either in a phased manner or at a time. The
Government of India is also directed to provide
necessary help for implementation of the direction. The
Election Commission is also to undertake awareness G
programmes to educate the masses. [Para 61] [322-G-H;
323·A·C]
N.P. Ponnuswami vs. Returning officer, 1952 SCR 218,
Jamuna Prasad Mukhariya vs. Lachhi Ram, 1955 (1) SCR
H
292 SUPREME COURT REPORTS [2013) 12 S.C.R.
A 608, University of Delhi vs. Anand Vardhan Chandal, (2000)
10 SCC 648, Ku/dip Nayar (supra) and K. Krishna Murthy
(Dr.) vs. Union of India, (2010) 7 SCC 202; Kochunnl vs. State
of Madras, 1959 (2) Supp. SCR 316; Daryo vs. State of U.P.
1962 (1) SCR 574- cited.
B
Case Law Reference:
2002 (3) SCR 696 relied on para 4
2003 (2) SCR 1136 relied on para 4
c 2006 (5) Suppl. SCR 1 relied on para 4
1980 SCR 1302 relied on para 4
1952 SCR 218 cited para 22
D 1955 (1) SCR 608 cited para 22
(2000) 1o sec 648 cited para 22
(2010) 1 sec 202 cited para 22
1959 (2) Supp. SCR 316 cited para 23
E
1962 (1) SCR 574 cited para 23
(1972) 128 CLR 221 referred to Para 33
(2003) 1 SA 495 referred to Para 33
F 1993 (1) Suppl. SCR 791 referred to Para 35
1975 Supp 1 sec 198 relied on Para 45
1978 (2) SCR 272 relied on Para 45
G 1992 (1) SCR 686 relied on Para 45
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
161 of 2004.
Under Article 32 of the Constitution of India.
H
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 293
OF INDIA
P.P. Malhotra, ASG, Rajinder Sachhar, Bushra Parveen, A
Marnia Saxena, A.N. Singh, Sanjay Parikh, S. Wasim A. Qadri,
Yasir Rauf, Sushma Suri, B.V. Bairam Oas, D.S. Mahra,
Meenakshi Arora, S.K. Mendiratta, Vasav Anantharamey,
Kamini Jaiswal, Raghenth Basant, Arjun Singh Bhati, Hardeep
Singh, Liz Mathew for the appearing parties. B
The Judgment of the Court was delivered by
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 C
41 (2) & (3) and 49-0 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 0
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 E
49-0, 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. F
3. In the above backdrop, the petitioners herein prayed for
declaring Rules 41(2) & (3) and 49-0 of the Rules ultra vires
and unconstitutional and also prayed for a direction to the
Election Commission of India-Respondent No. 2 herein, to G
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. H
294 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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 fundam1intal right but is a
statutory rig ht. after considering Union of India vs. Association
for Democratic Reforms and Anr. (2002) 5 SCC 294 and
B People's Union for Civil Liberties vs. Union of India (2003) 4
SCC 399 held that even though the judgment in Ku/dip 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 dCJubt in this regard,
c 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. lmpleadment applications are
allowed.
D
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
E of India-Respondent No. 2 herein, Ms Kamini Jaiswal and Mr.
Raghenth Basant, learned counsel for th1~ impleading parties.
Contentions:
7. Mr. Rajinder Sachhar, learned senior counsel for the
F petitioners, by taking us through various provisions, particularly,
Section 128 of the RP Act as well as Rules 39, 41, 49-M and
49-0 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
G (3) thereof. He further pointed out that similarly according to Rule
49-0 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
H
'
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 295
OF INDIA [P. SATHASIVAM, CJI.]
in Form 17-A by the Presiding Officer and the signature or A
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 B
is that though right not to vote is recognized by Rules 41 and
49-0 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 c
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 D
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 E
is not maintainable. He further pointed out that in view of the
decision of the Constitution Bench in Ku/dip 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., F
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 G
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
H
296 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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
B to only those voters who have exercised their nght to vote and
the same, in no manner, can be extended to tl1ose 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
c 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 HP Act and the
Rules submitted that inasmuch as secrecy is an essential
D feature of "free and fair elections", Rules 41 (2) & (3) and 49-0
of the Rules violate the requirement of secrecy
10. Ms. Kamini Jaiswal and Mr. Raghenth Elasant, learned
counsel appearing for the impleading parties, while agreeing
E with the stand of the petitioners as well as the Cic~tio11
Commission of India, prayed that necessary dimctions 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
F 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.
G
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.
H Sections 79(d) and 128 of the RP Act read as under:
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 297
OF INDIA [P. SATHASIVAM, CJI.]
"79(d)--"electoral right" means the right of a person to A
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,
8
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: C
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. D
(2) Any person who contravenes the provisions ·of sub-
section (1) shall be punishable with imprisonmentJor a
term which may extend to three months or with fine or with
both."
E
Rules 39(1), 41, 49-M and 49-0 of the Rules read as
under:
"39. Maintenance of secrecy of voting by electors
within polling station and voting procedure.--(1) Every F
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
d~. G
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
H
298 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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
B
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.
c (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)
D 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 vciting procedure
hereinafter laid down.
(2) Immediately on being permitted to vote the elector shall
E proceed to the presiding officer or the polling c.~iice~
incharge of the control unit of the voting mac:hine who shall,
by pressing the appropriate button on the control unit,
activate the balloting unit; for recording of electo~s vote.
F (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
G 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.
H
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 299
OF INDIA [P. SATHASIVAM, CJI.]
(5) No elector shall be allowed to enter the voting A
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
8
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 C
violated shall be made against the elector's name in the
register of voters in Form 17A by the presiding officer
under his signature.
49-0. Elector deciding not to vote.--lf an elector, after 0
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 E
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 F
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 G
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,
H
300 SUPREME COURT REPORTS [2013) 12 S.C.R.
A without any of the distinctions mentioned in article 2 and
without unreasonable restrictions:
(a) •*• ••• ***·
'
(b) To vote and to be elected at genuine pNiodic elections
B 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
c 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;
D
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."
E
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
F against such remark. Form 17-A reads as under:
"FORM 17A
[See rule 49L)
REGISTER OF VOTERS
G 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. .......... .
H
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 301
OF INDIA [P. SATHASIVAM, CJI.]
SI SI. No. of Details of the Signature/ Remarks A
No. elector in the document Thumb
electoral roll produced by impression
the elector of elector
in proof of his/
her identification B
(1) (2) (3) (4) (5)
1.
2. c
3.
4.
D
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 E
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 49-0 of the F
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 G
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 H
302 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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 Petitic1n under Article
32 on the ground that the right claimed by the petitioners is not
a fundamental right as enshrined in..fart Ill of the Constitution.
8 It is the categorical objection of the Ofiion 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
C India that right to vote is not a fundamental right but merely a
statutory right. It is further pointed out that thi:s Court, in Para
20 of the referral order dated 23.02.2009, reported In (2009)
3 SCC 200, observed that since in Ku/dip Nayar (supra), the
judgments of this Court in Association for Democratic Reforms
(supra) and People's Union for Civil Liberties (supra) have not
0 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:
E (i) Whether there Is any doubt or confusion with regard
to the right of a voter in Kuldlp Nayar (supra);
(ii) Whether earlier two judgments viz., Association for
Democratic Reforms (supra) and People's Union for Civil
F Liberties (supra) referred to by the Constitution Bench in Ku/dip
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
G in Ku/dip 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.
H expressed separate but concurring opinions in the People's
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 303
OF INDIA [P. SATHASIVAM, 'CJI.]
Union for Civil Liberties (supra). In para 97, Reddi, J made an A
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 Ghosa/ [1982) 3 SCR 318 this
Court again pointed out in no uncertain terms that: B
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."
c
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 0
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 E
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.. .."
F
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 G
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."
H
304 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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
B 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
C 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
D decision of expressing himself while exercising the statutory
right to vote. In People's Union for Civil Liberties (supra), Shah
J., in para 780, held as under:-
" ... However, voters' fundamental right to know the
E 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:-
F
"... 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
G 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
H is thus a species of freedom of expression and therefore
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 305
OF INDIA [P. SATHASIVAM, CJI.]
carries with it the auxiliary and complementary rights such A
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 B
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 Ku/dip Nayar (supra) c
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 D
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 E
Kuldip Nayar (supra), Association for Democratic Reforms
(supra) and People's Union for Civil Liberties (supra), we are
of the considered view that Ku/dip Nayar (supra) does not
overrule the other two decisions rather it only reaffirms what
~as already been said by the two aforesaid decisions. The said F
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 sp~cies of freedom of expression".
Therefore, it cannot be said that Ku/dip Nayar (supra) has G
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 Ku/dip 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 H
306 SUPREME COURT REPORTS [2013) 12 S.C.R.
A and not in isolation. The contention of the petitioners in Ku/dip
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 ri!Jht under Article
19(1 )(a) of the Constitution. It is this contention on which the
B Constitution Bench did not agree too in the ope,ning line in para
362 and thereafter went on to clarify that in fact in People's
Union for Civil Liberties (supra), a fine distinc:tion was drawn
between the right to vote and the freedom of voting as a
species of freedom of expression. Thus, there is no
C 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
0 this Court in Ku/dip Nayar (supra) and the decisions in
Association fbr Democratic Reforms (supra) and People's
Union for Civil Liberties (PUCL) (supra) do not stand impliedly
overruled.
E 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
F 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,
G Jamuna Prasad Mukhariya vs. Lachhi Ram, 1955 (1) SCR
608, University of Delhi vs. Anand Vardhan Chandal, (2000)
10 SCC 648, Ku/dip Nayar (supra) and K. Krishna Murthy
(Dr.) VS. Union of India, (2010) 7 sec 202, wherein it has been
held that the right to vote is not a fundamental right but is merely
H a statutory right.
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 307
OF INDIA [P. SATHASIVAM, CJI.]
23. In Kochunni vs. State of Madras, 1959 (2) Supp. SCR A
316, this Court held that the right to rnove 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. B
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 C
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 ~xpression of an individual D
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 E
Constitution of India. In view of the above said decisions as well
as the observations of the Constitution Bench in Ku/dip Nayar
(supra), a prima facie case exists for the exercise of jurisdiction
of this Court under Article 32.
F
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 G
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
H
308 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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.
B
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
49-0 of the Rules. It is clear from the above provisions that
C 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:
D
"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
E
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.
F 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,
G 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.
H
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 309
OF INDIA [P. SATHASIVAM, CJI.]
452. Par:ie1~o1entary democracy and multi-party system are A
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 B
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. c
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 D
was: whether "floor crossing" was fundamental to the
Constitution of South Africa. In this judgment the concept
of proportional representation vis-a-vis constituency-based
representation is highlighted ...
E
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. F
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, G
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 H
310 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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.''
8 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
C 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 Sin9h Gill vs. S.
Gurcharan Singh Tohra and Others 1980 (Supp) SCC 53 held
as under:
D
"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
E an elector or a voter should be absolutely fme 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 r1ay under a
compulsion of law be forced to disclose for whom he has
voted would act as a positive constraint and check on his
F
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.''
G 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.
H 30. With regard to the first prayer of the petitioners, viz.,
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 311
OF INDIA [P. SATHASIVAM, CJI.]
extension of principle of secrecy of ballot to those voters who A
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 B
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 c
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 0
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.
E
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 49-0 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 F
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 49-0 read with Form 17-A, which treats a voter who G
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.
H
312 SUPREME COURT REPORTS [2013) 12 S.C.R.
A 32. As regards the question as to whetller 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
B 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
c would act as a positive constraint and check en 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
0
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".
E 33. In Ku/dip Nayar (supra), this Gour' held th~• •~vugh
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 mad·e a copious
distinction between "constituency based representation" and
F "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
G South Africa, (2003) 1 SA 495 were also cited w.th approval.
34. Therefore, in view of the decisions of this Court in S.
Raghubir Singh Gill (supra) and Ku/dip Nayar lsupra), the
policy is clear that secrecy principle is integral to free and fair
elections which can be removed onlywhen it can be shown that
H
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 313
OF INDIA [P. SATHASIVAM, CJI.]
there is any conflict between secrecy and the "higher principle" A
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 B
49-0 undoubtedly violates that requirement.
35. In Lily ThOfT!ilS its. 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 9r issue in question" and that "right to vote means C
right to e{(ercise 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 D
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. E
37. A perusal of Section 79(d) of the RP Act, Rules 41(2)
& (3) and Rule 49-0 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 F
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 G
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
H
314 SUPREME COURT REPORTS [2013] 12 S.C.R.
A have to be sustained, which the Election Coll'mission 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
8
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 Machine!l (EVMs) were
C 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
D voting is not possible, in view of the provision of Rule 498 of
the Rules and the design of the EVM and other related voting
procedures. Rule 498 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
E candidates and there is no provision for a neutral buttol"'
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 :Tiay cast his
F 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
G 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
H button against the candidate of his choice, he can see a red
-
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 315
OF INDIA [P. SATHASIVAM, CJI.]
light glow against the name and symbol of that candidate and A
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 B
"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 c
at the relevant time will come to know that a vote has not been
cast by the elector.
41. Rule 49-0 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 D
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 49-0 compromise on the secrecy of the vote E
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 F
Voting Machines only. Therefore, Rule 49-0, 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 G
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 H
316 SUPREME COURT REPORTS [2013) 12 S.C.R.
A be considered as an invalid vote, the voter ~;till 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
s 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
C a/ia, 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
D 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
E 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
F 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
G 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
H case, Article 19 was not in issue and the observations were in
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 317
OF INDIA [P. SATHASIVAM, CJI.]
the context of basic structure of the Constitution. Thereafter, this A
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. Zachil/hu and Others, 1992
(Supp) 2 sec 651. s
46. In order to protect the right in terms of Section 79(d)
and Rule 49-0, 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 C
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. D
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 E
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." F
48. Mr. Malhotra, learned ASG has also pointed out that
elections are conducted to fill a seat by electir)Q 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 G
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.
H
318 SUPREME COURT REPORTS [2013] 12 S.C.R.
A Finally, he concluded that negative votinu (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.
B
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,
C 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.
D
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
E 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 ccigent view, nothing
should stop the same. The voters' participation in the election
is indeed the participation in the democracy itself. Non-
F 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
G 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
H
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 319
OF INDIA [P. SATHASIVAM, CJI.]
voters to go to the polls and thus participate in the governance A
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 B
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 C
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. D
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 E
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 F
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 G
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,
H
320 SUPREME COURT REPORTS [2013) 12 S.C.R.
A secrecy is required to be maintained for both categories of
persons.
55. Giving right to a voter not to vote for any candidate
while protectiog his right of secrecy is extremely important in a
B 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
C 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
D up for voting which in turn provides a chance to u"scrupulous
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
E 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,
F 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.
G
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:
H
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 321
OF INDIA [P. SATHASIVAM, CJI.]
S.No Name of Method of Form of A
the Country Voting Negative
Vote
1. France Electronic NOTA
2. Belgium Electronic NOTA B
3. Brazil Ballot Paper NOTA
4. Greece Ballot Paper NOTA
5. Ukraine Ballot Paper NOTA
c
6. Chile Ballot Paper NOTA
7. Bangladesh Ballot Paper NOTA
D
8. State of Nevada, USA Ballot Paper NOTA
9. Finland Ballot Paper Blank Vote
and/or
'write in*'
E
10. Sweden Ballot Paper Blank Vote
and/or 'write
in*'
11. United States of Electronic/Ballot Blank Vote F
America (Depending on and/o
'write in*'
12. Colombia Ballot Paper Blank Vote
13. Spain Ballot Paper Blank Vote G
* 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 H
322 SUPREME COURT REPORTS [2013] 12 S.C.R.
A 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. Leari1ed counsel
appearing for the Election Commission also asserted through
B 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
c 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
D electronic voting machines without any additional cost or
administrative effort or change in design or te,chnology 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
E 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
F 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
G last panel in the EVM for the same.
61. In the light of the above discussion, we hold that Rules
41(2) & (3) and 49-0 of the Rules are ultra vires Section 128
of the RP Act and Article 19(1 )(a) of the Constitution to the
H extent they violate secrecy of voting. In view of our conclusion,
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION 323
OF INDIA [P. SATHASIVAM, CJI.]
we direct the Election Commission to provide necessary A
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. B
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 c
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. D
R.P. Writ Petition disposed of.
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