Voters to enjoy secrecy via ‘none of the above’ option

By Vivek Vashi and Zeus Dhanbhoora, Bharucha & Partners
0
725

Thanks to the Supreme Court’s decision in People’s Union for Civil Liberties & anr v Union of India & anr, every voter in India can now exercise their right not to vote while at the same time maintaining their secrecy. The court directed the election commission to provide a “none of the above” (NOTA) option on every ballot paper and a NOTA button on every electronic voting machine.

Vivek Vashi
Vivek Vashi

Previously, voters who wished to exercise their right not to vote for any of the candidates had to state their intention to the presiding officer who would in turn enter a remark to that effect on a prescribed form and obtain the voter’s signature and thumb impression against such remark, thus violating the voter’s right to keep their vote secret. This procedure also violated the voter’s right to exercise their right not to vote in secrecy, which is recognized by rules 41 and 49-O under the Representation of the People Act, 1951 (RP Act), and is part of the voter’s freedom of expression.

Facts

Through a writ petition under article 32 of the constitution of India, the petitioners challenged rules 41(2) & (3) of the RP Act, on the grounds that secrecy is an essential feature of “free and fair elections” and the rules violate the requirement of secrecy.

Counsel for the government argued that the right to vote was neither a fundamental right nor a constitutional right but a statutory right and therefore the writ petition was not maintainable. He cited case law which established that the right to vote is essentially a statutory right and not a fundamental one and contended that the right to secrecy has been extended only to voters who exercise their right to vote and the same cannot be extended to those who have chosen not to vote.

Interpretation of the court

The court had to first decide on the maintainability of the suit in response to the government’s stand that the right to vote is statutory and not a fundamental right. For a writ petition under article 32, a fundamental right must have been violated.

The court relied on two judgments cited by counsel for the petitioners, which stated that that the right to vote was not only a constitutional right but a statutory right as well. The most important statement was that “freedom of voting as distinct from right to vote is a facet of the fundamental right enshrined in Article 19(1)(a)”. This lies at the heart of the matter and the entire judgment is based on the court’s interpretation of this line.

Zeus Dhanbhoora
Zeus Dhanbhoora

The judges distinguished between the right to vote and freedom of voting as a species of freedom of expression. The essence of the judgment was that the right to vote is a statutory right but the decision taken by the voter after verifying the credentials of the candidates engages the right of expression under article 19(1)(a) of the constitution. Thus the writ petition was maintainable under article 32.

The court observed that in direct elections to the Lok Sabha and state legislatures, and in democracies all over the world where direct elections are involved, maintenance of secrecy is a must to ensure that voters can cast their ballots without any fear. The right to vote as well as right to not vote are recognized in section 79(d) of the RP Act and in the rules. Whether a voter decides to cast their vote or not, in both cases, secrecy has to be maintained.

The court stated that even voting machines in the parliament have three buttons, namely, yes, no and abstain. The NOTA button sought by the petitioners is similar to the abstain button as by pressing NOTA the citizen is essentially abstaining from voting.

Decision

The court observed that since India is a democracy, free and fair elections are essential. Thus, the voter must be given an option to choose NOTA and that option must be a protected one. NOTA will appear after the names of the candidates. For example, if 10 candidates are contesting an election, an 11th choice – none of the above – will be added.

The NOTA votes will be counted and indicated in the final result chart, showing how many people had no faith in any of the candidates contesting the election. Countries such as France, Belgium, Brazil, Greece and Ukraine also have such a system.

Conclusion

The present judgment upholds the ideals of democracy and is one in a recent line of judgments by the Supreme Court which strive towards bringing about electoral reforms. It is hoped that the people of India recognize the power vested in them by making their vote count, even if it is a negative one.

Vivek Vashi is the mainstay of the litigation team at Bharucha & Partners, where Zeus Dhanbhoora is an associate.

Bharucha_&_Partners_logo

Bharucha & Partners Advocates & Solicitors

Cecil Court, 4th Floor, MK Bhushan Road

Mumbai-400 039

India

Tel: +91-22 2289 9300

Fax: +91-22 2282 3900

E-mail: [email protected]