Indian Supreme Court Upholds the Right to Negative Voting

by | Oct 9, 2013

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About Gautam Bhatia

Gautam Bhatia is a lawyer and a post-doctoral fellow at SCRIPTS-Berlin.

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 Indiathe 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.

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  1. Ritesh Dubey

    I am not sure if you have tried to interpret the judgment or just impose your own understanding, little or more, on this issue. For one thing is sure, that the Supreme Court of India, did not gave negative voting rights to electorates in India. It has merely ensured secrecy of people opting for none of the above option, a right which one can easily enjoy sitting at home on election day. So, practically there is no difference if you do not vote or if you choose not to vote to any of the candidates, as per current judgment. In an event of NOTA counts more than any other candidate, the candidate having maximum vote will win. So, practically, NOTA votes will not form the denominator while counting the votes, they are much more like invalid votes. I am surprised how could Oxford allow such publication without proper scrutiny. The article is fundamentally incorrect in interpretation of the order and factually no where near the issue.

  2. Gautam Bhatia

    Thank you for your comment. Let us distinguish between three ideas: the way in which the judgment changes the law, the values that it seeks to uphold, and the actual impact that it will have on the way elections are conducted in India.

    1) The judgment changes the law by requiring the EC to introduce a “NOTA” option on ballots and in electronic voting machines (Paragraph 61). I trust there is no disagreement about this.

    2) The value of the judgment lies, as I have argued in the post, in the Court reaffirming and strengthening the link between the freedom of expression and the freedom to vote, and thus placing the latter upon firm constitutional footing within Part III.

    3) The actual impact upon elections: The jury is out on this one, since the judgment is still comparatively recent. You are, of course, right when you say that election outcomes will not be changed in any way, because even if NOTA outstrips all the other votes, it wouldn’t count. But I think it would be a mistake to view the significance of NOTA through such a narrow lens: the crucial difference between not voting by not showing up at the booth, and not voting by registering a NOTA vote, is that the former is not an expression of disapproval for all the parties involved (you could sit at home for any reason – illness, accidents, lack of time), whereas actually going to the booth and voting NOTA is. NOTA provides voters with an opportunity to express their disapproval for all the parties in the electoral process, and consequently, their desire to see a substantial transformation of the political process. I think we can all agree that that is a good thing.

    I hope this clears up your doubts and answers some of your objections.

  3. Vinay

    1-Article.326 of indian constitution talks about election on basis of adult suffrage .then why is it not constitution right but statutory right.I think constitution provides this so it should constitutional right.

    2-what is difference between constitutional and statutory right?

  4. sandeep kumar

    i am agree this view of supreme court of india ,so that because tthis time the indian political system very criminal nature &economically currpt … behappy

  5. ramakrishnan

    Thanks for sharing this valuable information about NOTA.

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