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Updated: Dec 20, 2021

Authored by Nilesh Chopra, a 4th year student of Jindal Global Law School, Sonepat.

This piece will be analyzing the landmark judgement of the People’s Union for Civil Liberties & Anr v. Union of India & Anr, where the Hon’ble Supreme Court directed the incorporation of the option of “None of the Above” (NOTA) in the voting process.

India has witnessed 17 Lok Sabha Elections since Independence, but it was not until 2013 that the voters could express their choice profusely. The Indian Elections did not include the option of NOTA in the ballot papers or Electronic Voting Machines (EVM). The citizens who chose not to vote for any of the candidates had to follow the procedure prescribed under Rule 49-O of the Conduct of Election Rules, 1961. According to this rule, a voter can decide not to vote for any of the candidates by giving his ballot paper to the presiding officer in the booth subsequent to which, a remark would be made against his/her entry in Form 17-A by the presiding officer and the signature/thumb impression of the voter shall be obtained against such remark which is outrightly violating the secrecy of a citizen’s vote. However, according to Section 128 of the Representation of People Act, 1951, the presiding officer is required to maintain the secrecy of voting, which is clearly violated through the procedure under Rule 49-O. Therefore, the procedure laid down under the rule is a clear violation of the right to secrecy of a voter.

This issue was raised in the case of People’s Union for Civil Liberties & Anr v. Union of India & Anr, where the People’s Union for Civil Liberties (PUCL) filed a writ petition under Article 32 of the Constitution challenging the validity of Rules 41(2) & (3) and 49-O of the Conduct of Election Rules, 1961 contending that these provisions violate the secrecy of voting which is a fundamental right and an integral part of ‘free and fair elections, which is required to be maintained under Section 128 of the Representation of People Act, 1951 and the Constitution of India. They further contended that the voter’s right to privacy under Article 19(1)(a) and 21 of the Constitution were violated as the ‘right to vote’ is a part of freedom of expression which ought to be kept a secret. On the other hand, the counsel for the Union of India contended that the right to vote is not a fundamental right or a constitutional right or a common right but merely a statutory right.

The Constitution Bench consisting of Chief Justice of India, P. Sathasivam, Justice Rajan Gogoi and Justice Ranjana Desai rendered this landmark judgement. They held that the ‘right to vote is a Constitutional Right as the right originates from the Constitution and has shaped the Representation of People Act, 1951, in accordance with the constitutional mandate contained in Article 326. They said that right to vote is a form of expression under Article 19(1)(a) of the Constitution of India meaning that the right to vote is a constitutional right.[i]

The court extensively elaborated on the secrecy of voting. They stated that throughout the world, in democracies where direct elections are involved, the voter should cast his vote without any fear of being victimized and that when a vote is cast by him/her, the secrecy of his choice ought to be maintained. Chief Justice of India P. Sathasivam said, “Secrecy of ballot is a privilege granted in the public interest to an individual.”[ii]The right to expression under Article 19 is infringed when the secrecy of the poll is not maintained.[iii]

A voter may refrain from voting at an election for several reasons including the reason that he does not consider any of the candidates worthy. One of the ways of expressing this may be abstaining from voting, which is not an ideal option for a responsible citizen in a democracy. The only way by which it can be made effective is by incorporating the option of NOTA in EVMs and ballot papers so that the citizens can express their choice freely. In order to sustain the values of a healthy democracy, this option should be included in the elections.

The strength of a democracy is determined by the number of citizens participating in elections. The larger the participation, the healthier the democracy. Introducing the option of NOTA will substantially accelerate voter participation and empower them. An integral feature of democracy is choice and adding NOTA will give the voters an opportunity to verbalize themselves unreservedly and by imposing fewer restrictions on their ability to make a choice.

Free and fair elections are a part of the basic structure of the Constitution and include within its ambit, the right of an elector to cast his vote without any fear of reprisal, duress or coercion. There should be no distinction between a voter who casts his vote in favour of a candidate and a voter who does not as it is a violation of Article 14. In addition, the identity of the voter should be protected, and utmost secrecy should be provided.

In conclusion, the court rightfully held Rule 41(2) & (3) and 49-O of the Conduct of Election Rules as ultra vires of Section 128 of the Representation of People Act, 1951 and Article 19(1)(a) of the Constitution to the extent of violating the secrecy of the voting process. The court directed the Election Commission to add the option of None of the Above (NOTA) in the ballot papers and EVMs so that voters have secrecy while exercising their constitutional right of voting.


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