In late September, the Indian Supreme Court, in PUCL v. Union of India, upheld the constitutional right of citizens to cast a negative vote in elections. This judgment crystallizes an emerging theme in Indian constitutional jurisprudence: the connection between the constitutional right to freedom of speech and expression [Article 19(1)(a)] and parliamentary elections.
In PUCL v. Union of India, the constitutional validity of Rules 41(2), (3) and 49-O of the Conduct of Election Rules, 1961, was impugned. The combined effect of these rules was that persons who did not vote in elections were recorded (by the presiding officer) as having not voted. The petitioners argued that this was a violation of the right to secret balloting, protected – inter alia – by Article 19(1)(a) of the Constitution, which guarantees the freedom of speech and expression.
Relying upon the previous case of Kuldip Nayar v. Union of India, the State raised a preliminary objection on the ground that since voting was not a fundamental or constitutional right, but only a “statutory right” brought into existence by the Representation of Peoples Act, the petitioners had no standing to bring the claim.
Rejecting this contention, the Court distinguished between the “right to vote” and the “freedom of voting as a species of the freedom of expression“. [Paragraph 19] This is what explained the Court’s earlier decisions in PUCL v. Union of India and Association for Democratic Reforms v. Union of India, where – despite accepting that the right to vote was a statutory right, the Court nonetheless held that the right to know the antecedents of politicians, in order to exercise one’s franchise responsibly, was protected by Article 19(1)(a). [Paragraph 20]
The Court then found that in a system of direct elections, secrecy was essential to ensure the effectiveness of the vote. Since the freedom to vote naturally included the freedom not to vote, it would be arbitrary to extend secrecy to one and not the other. [Paragraph 31] It buttressed its argument by invoking Indira Nehru Gandhi v. Raj Narain and Kihoto Hollohan v. Zachilhu for the proposition that an effective democracy functioning through periodic fair and free elections is part of the basic structure of the Constitution. [Paragraph 45] In addition, the act of not voting was as much a positive exercise of free expression under Article 19(1)(a) as was voting itself, and so deserved similar levels of protection [Paragraph 49]. The Court therefore directed the Election Commission to introduce a “None of the Above [NOTA]” option into the Electronic Voting Machines. [Paragraph 61]
The judgment of the Court clarifies the constitutional status of voting. What does it mean to say that the right to vote is only statutory, but the act of voting is an exercise of free speech protected by Article 19(1)(a)? Essentially, that the right to vote is statutory insofar as the modalities of voting are regulated by statute (in case of India, the Representation of Peoples Act); eligibility for voting, when and in what manner, what rules political parties must abide by, and so on - these are matters determined by statute, and subject to the control of the legislature.
The act of voting, however, is – at least in theory – the most important act of expression through which the citizen participates in a representative democracy. So, while the right to vote remains a statutory right, parliament may not erect any formal or substantial barriers that render voting ineffective. The freedom to vote is – in its abstract sense – a constitutional and a fundamental right, the contours and lineations of which are to be worked out by parliament through statute.
This conclusion follows inexorably from Article 19(1)(a) and from the Constitution. Over more than fifty years, in a series of free speech cases, the Court has located Indian free speech law in a functioning liberal democracy where speech plays the important role. This would mean nothing if the basic mechanism that defines a representative democracy – periodic change in government through elections – was compromised or made ineffective.
In addition, Part XV of the Constitution is devoted to the conduct of elections, including non-discrimination rules (Article 325). Article 326 states that elections to the House and the Assemblies are to be on the basis of adult suffrage. These provisions assume the existence of elections as a prerequisite. Lastly, representative democracy – as the Court held – is a basic feature of the Constitution.
The Supreme Court’s judgment is a welcome step in affirming the centrality of the freedom of speech and expression to the domain of elections and representative democracy.
Gautam Bhatia completed his BCL from Oxford in 2012, and is presently an LLM candidate at the Yale Law School. A longer version of this post may be found on his Indian Constitutional law blog.