Case Summary and Outcome

The Indian Supreme Court ruled that Constitution protects a right not to vote as part of the fundamental right to freedom of speech and expression. The case had been brought as a challenge to government rules which required a presiding officer to take a note whenever a voter decided not to vote for any of the candidates. The People’s Union for Civil Liberties challenged the constitutionality of this practice.

Facts

The People’s Union of Civil Liberties (PUCL), a civil rights NGO, brought a case arguing that the Representation of People Act of 1951 violated the right to freedom of expression because while it recognized the right to not vote, it did not adequately protect secrecy. Under the Act, whenever someone exercises the right not to vote a note is taken by the Presiding Officer. The government objected, arguing that the right to vote is not a fundamental constitutional right but rather that it was a right granted and regulated by statute. The government argued that the Act was meant to protect those who had voted for one of the candidates and could not be extended to those who did not exercise their right to vote. The Centre for Consumer Education and the Association for Democratic Reforms filed further submissions requesting to be included in the case as affected parties.

Decision Overview

The Court agreed with the respondent in so far as the right to vote was only a statutory right. However, the Court recognized the fine distinction that has been drawn in existing case law between the statutory right to vote on the one hand, and freedom of voting as a facet of the constitutionally protected right to freedom of expression on the other hand. The Court found that the decision of a voter to not vote for any of the candidates after evaluating each of them was a facet of the right to freedom of expression, as protected under Article 19(1)(a) of India’s Constitution.

The Court emphasised that the secrecy of the ballot was essential; the fear of disclosure of one’s vote would act as a constraint on the voter’s expression and decision not to vote. The Court considered that there may be a number of reasons why a voter decides not to vote for any of the candidates. For instance, she or he may not consider any of the candidates worthy. Since the decision not to vote is a facet of the constitutionally protected right to freedom of expression, the only way to give meaning to this right in a democracy is to ensure an option of a ‘negative vote’ in the electronic voting machines. The Court emphasized that this was necessary in order to protect free and fair elections, which are a fundamental part of the basic structure of India’s constitutional democracy. Finally, the Court held that an arbitrary distinction had been drawn between voters who decide to vote and those who do not. This violated the right to equality under Article 14 of the Indian Constitution.

For these reasons, the Court concluded that the Rules as they stood violated fundamental rights and ruled that a ‘none of the above’ option in electronic voting machines should be provided.