REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 161 OF 2004
People’s Union for Civil
Liberties & Anr. ....
Petitioner (s)
Versus
Union of India &
Anr. ....
Respondent(s)
paras 1,2, 51 to 56 and 61 of the Judgment
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.
_________________________________________________________________
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.
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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