Apex Court directs insertion of “None of the Above” option in EVMs; Right to free and fair elections part of basic structure

The Supreme Court in a landmark judgment today directed the Election Commission to insert a “None of the Above” (NOTA) option in Electronic Voting Machines (EVMs) and ballot papers. In the process court struck down the constitutionality of Rules 41(2), 41(3) and 49(O) of the Conduct of Election Rules, 1961 (Rules) as violative of the Freedom of Expression guaranteed under Article 19(1)(a) of the Indian Constitution..The court rejected the argument of maintainability of the petition advanced by the Union of India and held that right to free and fair elections is part of the basic structure of the Constitution and right to vote in secrecy is an essential facet of it. The court also held that the current system in which those who vote are ensured of their secrecy but those who chose not to vote have their identity disclosed, is arbitrary and violative of Article 14..The judgment was delivered by a three-judge Bench comprising of Chief Justice P Sathasivam and Justices Ranjana Prakash Desai and Ranjan Gogoi in a Public Interest Litigation [People’s Union for Civil Liberties & Anr. v. Union of India & Anr., WP (c) no. 161/2004] filed by NGO People’s Union for Civil Liberties (PUCL) seeking, inter alia, the right of negative voting..While pronouncing the judgment, Chief Justice Sathasivam said the mechanism of negative voting is necessary and vibrant part of democracy. The Court observed that NOTA option button will force political parties to field candidates with integrity, and likened the NOTA option to the “abstain” button in the voting machines used in the Parliament..The case had earlier been heard by a Division Bench headed by Justice GS Singhvi who referred the matter to a larger Bench..The petitioner had sought directions to be issued to the Election Commission of India (EC) to make appropriate provisions in the EVMs and ballot papers so as to enable the voters to exercise their right of negative voting and also ensure that the exercise of this right is kept secret. It had contended that Rules 41(2) and 49O of the Rules were unconstitutional in that it violated the voter’s right to vote in secrecy and thereby impinged the freedom of expression guaranteed under Article 19 (1) (a) of the Constitution..It was the petitioner’s case that since the lack of a NOTA option in EVMs mean that whenever a voter chose not to vote for any of the candidates, the voter’s only option was to inform the presiding officer of the polling booth who would then record this decision. This, in turn, would be a violation of a voter’s right to cast a “negative” vote in privacy..The EC had agreed with the view of the petitioner that though the right to vote was only a statutory right, the freedom to choose from amongst the contesting candidates was a facet of freedom of expression under Article 19 (1) (a). It had, however, submitted that it was helpless in the matter because of the fact that Rule 49B of the Rules required that the EVMs should carry only names of the contesting candidates. The EC had, therefore, suggested that either Rule 49B be amended or that the Court reads into the said provision the right to cast a negative vote, thereby enabling the EC to make provision in the EVMs for casting negative votes..The Central Government had, however, challenged the maintainability of the petition contending that the right to vote was only a statutory right as was held by a Constitution Bench of the Supreme Court in Kuldip Nayar v. Union of India [2006 (7) SCC 1] and the reference of the matter to a larger Bench by the Division Bench was needless..Senior Advocate Rajinder Sachar appeared for the petitioner. Additional Solicitor General PP Malhotra represented the Central government while Meenakshi Arora, who was recently designated Senior Advocate, appeared for the EC..Text of judgment available below:.Image taken from here.