Writ Petition (Civil) No. 161 of 2004. Case: People's Union for Civil Liberties & Anr. Vs Union of India & Anr.. Supreme Court (India)
| Case Number | Writ Petition (Civil) No. 161 of 2004 |
| Counsel | For Appearing Parties: P.P. Malhotra, ASG, Rajinder Sachhar, Sr. Adv., Bushra Parveen, Mamta Saxena, A.N. Singh, Sanjay Parikh, S. Wasim A. Qadri, Yasir Rauf, Sushma Suri, B.V. Balram Das, D.S. Mahra, Meenakshi Arora, S.K. Mendiratta, Vasav Anantharamey, Kamini Jaiswal, Raghenth Basant, Arjun Singh Bhati, Hardeep Singh and Liz Mathew, Advs. |
| Judges | P. Sathasivam CJI & Ranjana Prakash Desai, Ranjan Gogoi, JJ. |
| Issue | Constitution of India - Articles 19(1)(a), 21, 32, 324; Conduct of Election Rules, 1961 - Rules 41, 41(2) & (3), 39, 49-M, 49-O; Representation of the People Act, 1951 - Sections 2(d), 79(d), 62(1), 128 |
| Citation | 2013 (6) ABR 910, 2013 (4) AKR 566, 2013 (5) ALD 173, 2013 (202) DLT 677, 2013 (5) KarLJ 545, 2013 (4) KLT 104, 2013 (7) MLJ 537, 2013 (4) RCR 669 (Civil), 2013 (12) SCALE 165, 2013 (10) SCC 1 |
| Judgement Date | September 27, 2013 |
| Court | Supreme Court (India) |
Judgment:
P.Sathasivam, CJI.
1) The present writ petition, under Article 32 of the Constitution of India, has been filed by the petitioners herein challenging the constitutional validity of Rules 41(2) & (3) and 49-O of the Conduct of Election Rules, 1961 (in short 'the Rules') to the extent that these provisions violate the secrecy of voting which is fundamental to the free and fair elections and is required to be maintained as per Section 128 of the Representation of the People Act, 1951 (in short 'the RP Act') and Rules 39 and 49-M of the Rules.
2) The petitioners herein have preferred this petition for the issuance of a writ or direction(s) of like nature on the ground that though the above said Rules, viz., Rules 41(2) & (3) and 49-O, recognize the right of a voter not to vote but still the secrecy of his having not voted is not maintained in its implementation and thus the impugned rules, to the extent of such violation of the right to secrecy, are not only ultra vires to the said Rules but also violative of Articles 19(1)(a) and 21 of the Constitution of India besides International Covenants.
3) In the above backdrop, the petitioners herein prayed for declaring Rules 41(2) & (3) and 49-O of the Rules ultra vires and unconstitutional and also prayed for a direction to the Election Commission of India- Respondent No. 2 herein, to provide necessary provision in the ballot papers as well as in the electronic voting machines for the protection of the right of not to vote in order to keep the exercise of such right a secret under the existing RP Act/the Rules or under Article 324 of the Constitution.
4) On 23.02.2009, a Division Bench of this Court, on an objection with regard to maintainability of the writ petition on the ground that right to vote is not a fundamental right but is a statutory right, after considering Union of India vs. Association for Democratic Reforms and Anr. (2002) 5 SCC 294 and People's Union for Civil Liberties vs. Union of India (2003) 4 SCC 399 held that even though the judgment in Kuldip Nayar & Ors. vs. Union of India & Ors. (2006) 7 SCC 1 did not overrule or discard the ratio laid down in the judgments mentioned above, however, it creates a doubt in this regard, referred the matter to a larger Bench to arrive at a decision.
5) One Centre for Consumer Education and Association for Democratic Reforms have filed applications for impleadment in this Writ Petition. Impleadment applications are allowed.
6) Heard Mr. Rajinder Sachhar, learned senior counsel for the petitioners, Mr. P.P. Malhotra, learned Additional Solicitor General for the Union of India-Respondent No. 1 herein, Ms. Meenakshi Arora, learned counsel for the Election Commission of India-Respondent No. 2 herein, Ms Kamini Jaiswal and Mr. Raghenth Basant, learned counsel for the impleading parties.
Contentions:
7) Mr. Rajinder Sachhar, learned senior counsel for the petitioners, by taking us through various provisions, particularly, Section 128 of the RP Act as well as Rules 39, 41, 49-M and 49-O of the Rules submitted that in terms of Rule 41(2) of the Rules, an elector has a right not to vote but still the secrecy of his having not voted is not maintained under Rules 41(2) and (3) thereof. He further pointed out that similarly according to Rule 49-O of the Rules, the right of a voter who decides not to vote has been accepted but the secrecy is not maintained. According to him, in case an elector decides not to record his vote, a remark to this effect shall be made against the said entry in Form 17-A by the Presiding Officer and the signature or thumb impression of the elector shall be obtained against such remark. Hence, if a voter decides not to vote, his record will be maintained by the Presiding Officer which will thereby disclose that he has decided not to vote. The main substance of the arguments of learned senior counsel for the petitioners is that though right not to vote is recognized by Rules 41 and 49-O of the Rules and is also a part of the freedom of expression of a voter, if a voter chooses to exercise the said right, it has to be kept secret. Learned senior counsel further submitted that both the above provisions, to the extent of such violation of the secrecy clause are not only ultra vires but also contrary to Section 128 of the RP Act, Rules 39 and 49-M of the Rules as well as Articles 19(1)(a) and 21 of the Constitution.
8) On the other hand, Mr. P.P. Malhotra, learned Additional Solicitor General appearing for the Union of India submitted that the right to vote is neither a fundamental right nor a constitutional right nor a common law right but is a pure and simple statutory right. He asserted that neither the RP Act nor the Constitution of India declares the right to vote as anything more than a statutory right and hence the present writ petition is not maintainable. He further pointed out that in view of the decision of the Constitution Bench in Kuldip Nayar (supra), the reference for deciding the same by a larger Bench was unnecessary. He further pointed out that in view of the above decision, the earlier two decisions of this Court, viz., Association for Democratic Reforms and Another (supra) and People's Union for Civil Liberties (supra), stood impliedly overruled, hence, on this ground also reference to a larger Bench was not required. He further pointed out that though the power of Election Commission under Article 324 of the Constitution is wide enough, but still the same can, in no manner, be construed as to cover those areas, which are already covered by the statutory provisions. He further pointed out that even from the existing provisions, it is clear that secrecy of ballot is a principle which has been formulated to ensure that in no case it shall be known to the candidates or their representatives that in whose favour a particular voter has voted so that he can exercise his right to vote freely and fearlessly. He also pointed out that the right of secrecy has been extended to only those voters who have exercised their right to vote and the same, in no manner, can be extended to those who have not voted at all. Finally, he submitted that since Section 2(d) of the RP Act specifically defines "election" to mean an election to fill a seat, it cannot be construed as an election not to fill a seat.
9) Ms. Meenakshi Arora, learned counsel appearing for the Election Commission of India - Respondent No. 2 herein, by pointing out various provisions both from the RP Act and the Rules submitted that inasmuch as secrecy is an essential feature of "free and fair elections", Rules 41(2) & (3) and 49-O of the Rules violate the requirement of secrecy.
10) Ms. Kamini Jaiswal and Mr. Raghenth Basant, learned counsel appearing for the impleading parties, while agreeing with the stand of the petitioners as well as the Election Commission of India, prayed that necessary directions may be issued for providing another button viz., "None of the Above" (NOTA) in the Electronic Voting Machines (EVMs) so that the voters who come to the polling booth and decide not to vote for any of the candidates, are able to exercise their right not to vote while maintaining their right of secrecy.
11) We have carefully considered the rival submissions and perused the relevant provisions of the RP Act and the Rules.
Discussion:
12) In order to answer the above contentions, it is vital to refer to the relevant provisions of the RP Act and the Rules. Sections 79(d) and 128 of the RP Act read as under:
"79(d)--"electoral right" means the right of a person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate, or to vote or refrain from voting at an election.
128 - Maintenance of secrecy of voting--(1) Every officer, clerk, agent or other person who performs any duty in connection with the recording or counting of votes at an election shall maintain, and aid in maintaining, the secrecy of the voting and shall not (except for some purpose authorized by or under any law) communicate to any person any information calculated to violate such secrecy:
Provided that the provisions of this sub-section shall not apply to such officer, clerk, agent or other person who performs any such duty at an election to fill a seat or seats in the Council of States.
(2) Any person who contravenes the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to three months or with fine or with both."
Rules 39(1), 41, 49-M and 49-O of the Rules read as under:
"39. Maintenance of secrecy of voting by electors within polling station and voting procedure.--(1) Every elector to whom a ballot paper has been issued under rule 38 or under any other provision of these rules, shall maintain secrecy of voting within the polling station and for that purpose observe the voting procedure hereinafter laid down.
41. Spoilt and returned ballot papers.--(1) An elector who has inadvertently dealt with his ballot paper in such manner that it cannot be conveniently used as a ballot paper may, on returning it to the presiding officer and on satisfying him of the inadvertence, be given another ballot paper, and the ballot paper so returned and the counterfoil of such ballot paper shall be marked "Spoilt: cancelled" by the presiding officer.
(2) If an elector after obtaining a ballot paper decides not to use it, he shall return it to the presiding officer, and the ballot paper so returned and the counterfoil of such ballot paper shall be marked as "Returned: cancelled" by the presiding officer.
(3) All ballot papers cancelled under sub-rule (1) or sub-rule (2) shall be kept in a separate packet.
49M. Maintenance of secrecy of voting by electors within the polling station and voting procedures.--(1) Every elector who has been permitted to vote under rule 49L shall maintain secrecy of voting within the polling station and for that purpose observe the voting procedure...
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