The concept of Right to Vote for all has been mooted for more than a century back with the existence originating from the reforms in Britain. The concept was lately accepted widely in every democracy that guarantees every citizen of every gender, caste, race, ethnicity etc. of that nation ‘equal voting rights’. India guarantees Universal adult Suffrage to every citizen and equal voting rights and at the same time, the futile ‘right not to vote’ under the Rules 41(2) & (3) and 49-O of the Conduct of Election Rules, 1961. The right was termed futile because the person demanding the same had to state the reasons for availing the right in front of the returning officer who had to keep the record of the same. Some petitioners in 2009 reached out to Supreme Court with the question that if Section 128 of the Representation of the People Act, 1951 guarantees free and fair voting and the secrecy of such vote as per the Rules 39 and 49-M of the 1961 rules.
The petitioners challenged the constitutionality of the Rules 41(2) & (3) and 49-O of the 1961 rules on the inconsistency with the Section 128 of the Representation of the People Act, 1951 and further with Articles 19(1)(a) and 21 of the Constitution of India. The other issue raised before the court was whether the judgement of Kuldip Nayar & Ors. vs. Union of India & Ors. (2006) 7 SCC 1 overruled or reiterated the majority judgement of the People’s Union for Civil Liberties vs. Union of India (2003) 4 SCC 399.
The issue, in this case, was contended by the counsel for the Union of India by corroborating that the right of not to vote is not a fundamental right and such conclusion of violation with the constitution stood null and void to the extent that the right to secrecy is only given to the ones who exercise their right to vote but not to the one who don’t choose to vote to any of the nominated candidates. However, the counsel for the Election Commission of India submitted explicitly that the impugned provisions of the 1961 rules are violative of RTP Act. The petitioner in its submission demanded the inclusion of the “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.” The 3-judge bench of the Supreme Court also referred to the Article 21(3) of the Universal Declaration of Human Rights and Article 25(b) of the International Covenant on Civil and Political Rights while discussing on the matter.
The court on the issue of the Kuldip Nayyar case clearly substantiated that the constitutional bench only laid down a distinction between the right to voting within the ambit of the constitutional or statutory right and held that the right to vote is purely a statutory right and added that the bench only tried to defy the contradicting view in the PUCL (2003) judgement and upheld the majority view.
However, the issue arose of maintainability of the matter in the view of the court that the right to vote is a statutory right and the petition was filed under Article 32 which is for the establishment of the Fundamental Rights under Part III of the Constitution of India. The court over this replied while referring to the PUCL (2003) judgement stated that “The casting of the vote is a facet of the right of expression of an individual and the said right is provided under Article 19(1)(a) of the Constitution…” and therefore has the right to exercise Article 32.
The court while referring to the main issue said that the secrecy of the ballot is a principle which has been formulated to ensure a voter 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.
However, over the issue of the infringement of the Article 19, while referring to the S. Raghbir Singh Gill vs. S. Gurcharan Singh Tohra and Others 1980 (Supp) SCC 53 and the Nayyar judgement held that the right to secrecy is a major right to establish the ‘free and fair elections’ and above it and this stance can only be overturned when the question arises as to the credibility over free elections. The court also referred to the 170th law Commission Report which stated the need to introduce the concept of the negative vote under which a panel would be introduced below the EVMs, similar to the ones through which other candidates are voted, for counting of votes opting not to vote for any candidate. The Election Commission added that the panel named as None Of The Above (NOTA) could be added as per the Section 79(d) under the electoral rights. The court also referred to the Indira Nehru Gandhi vs. Raj Narain, 1975 Supp 1 SCC 198 judgement where the free and fair election was added to the basic structure of the Constitution and held the impugned parts of the 1961 rules to be violative of Article 19(1)(a) and 14 of the Constitution of India and ordered for the inclusion of NOTA as the last panel of the EVMs and Ballot Papers.