# 12 S.C.R. 283 PEOPLE'S UNION FOR CIVIL LIBERTIES & ANR v. UNION OF INDIA & ANR

- **Citation:** [2013] 12 S.C.R. 283
- **Court:** Supreme Court of India
- **Decided:** 2013-09-27
- **Bench:** P. Sathasivam, Ranjana Prakash Desai, RANJAN GOGOi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/12-s-c-r-283-people-s-union-for-civil-liberties-anr-v-union-of-india-anr-28603
- **Pages:** 41

## Headnote

CONSTITUTION OF IND/A, 1950:
A
B
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 Rule

## Text

_Characters 0–39,968 of 77,349. This is a partial read: ask again with offset=39968 for what follows._

(2013] 12 S.C.R. 283
PEOPLE'S UNION FOR CIVIL LIBERTIES & ANR.
v.
UNION OF INDIA & ANR.
(Writ Petition (C) No. 161 of 2004)
SEPTEMBER 27, 2013
[P. SATHASIVAM, CJI, RANJANA PRAKASH DESAI
AND RANJAN GOGOi, JJ.]
CONSTITUTION OF IND/A, 1950:
A
B
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
'
candidate is a fundamental right of a voter so that he can
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]
G
Ku/dip Nayar & Ors. vs. Union of India & Ors. 2006 (5)
Suppl. SCR 1 = (2006) 7 SCC 1 - referred to.
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,
8 which talks about· Form 17-A, is applicable only in cases
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) 1 o 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.
D
5. One Centre for Consumer Education and Association
for Democratic Reforms have filed applications for
impleadment in this Writ Petition. lmpleadment 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
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
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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.
G
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.
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.
(2) Any person who contravenes the provisions ·of subsection (1) shall be punishable with imprisonmentJor a
term which may extend to three months or with fine or with
both."
Rules 39(1), 41, 49-M and 49-0 of the Rules read as
under:
D
E
"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
A
B
c
D
E
F
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[2013] 12 S.C.R.
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 subrule (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 vciting procedure
hereinafter laid down.
(2) Immediately on being permitted to vote the elector shall
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.
(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
H
(c) come out of the voting compartment and leave the
polling station.
(4) Every elector shall vote without undue delay.
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 17 A 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
17 A 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,
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[2013) 12 S.C.R.
A
without any of the distinctions mentioned in article 2 and
without unreasonable restrictions:
B
c
D
E
(a) •*•
•••
***· '
(b) To vote and to be elected at genuine pNiodic 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
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
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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
0 (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:
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:
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
B
c
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.. .. "
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
F
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."
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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:-
E
F
G
H
" ... 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
PEOPLE'S UNION FOR CIVIL LIBERTIES v. UNION
305
OF INDIA [P.