Right to vote a fundamental right; facet of freedom of speech and expression: Manipur High Court

In a judgment which could have serious impact in the arena of voting and election rights, the Manipur High Court recently held that casting of votes is a part of the voter’s right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India [Thounaojam Shyamkumar vs Lourembam Sanjoy Singh]..Justice MV Muralidaran, who was recently transferred to the Calcutta High Court, made the observation in a decision dated October 13 in the context of a voter’s right to know about an electoral candidate’s criminal antecedents.“Article 19(1)(a) of the Constitution of India provides for freedom of speech and expression. Voters’ speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote,” the Court said..It added that the voter’s right to know the antecedents, including criminal past of the candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy.“The voter may think over before making his choice of electing law breakers as law makers,” Justice Muralidaran who was Acting Chief Justice at the time of decision said.The Court made the observations while rejecting Bharatiya Janata Party (BJP) Member of Legislative Assembly (MLA) Thounaojam Shyamkumar’s petitions for dismissal of his election from Andro Assembly Constituency during the 2022 Legislative Assembly Election.The legal character of right to vote has been a subject of debate since the time of inception of the Constitution. It has, up until now, not been recognised as fundamental right but has mostly been restricted as a legal/ statutory right by various judicial pronouncements..Interestingly, Justice Ajay Rastogi in a Constitution Bench judgment in Anoop Baranwal v. Union of India earlier this year in his separate but concurring opinion said that right to vote is a fundamental right.“The right to vote is an expression of the choice of the citizen, which is a fundamental right under Article 19(1)(a). The right to vote is a part of a citizen's life as it is their indispensable tool to shape their own destinies by choosing the government they want. In that sense, it is a reflection of Article 21,” the then Supreme Court Judge said. However, in the same judgment, the majority led by Justice KM Joseph chose not to “finally pronounce” on this aspect, while taking into account the view taken by an earlier Constitution Bench in Kuldip Nayar and Others v. Union of India and Others In Kuldip Nayar, the top court had rejected the view that “right to vote is a constitutional right besides that it is also a facet of fundamental right under Article 19(1)(a) of the Constitution.” However, a division bench of the Supreme Court later in July this year described as paradoxical the fact that the right to vote has not been recognised as a fundamental right in India, despite democracy being an essential facet of the Constitution.“Democracy has been held to be a part of one of the essential features of the Constitution. Yet, somewhat paradoxically, the right to vote has not been recognized as a Fundamental Right yet; it was termed as a “mere” statutory right.".Present Case.Shyamkumar’s election was challenged by the runner-up candidate Lourembam Sanjoy Singh and his brother Lourembam Sanjit Singh on the ground of non disclosure of information regarding the pendency of a criminal case against him.The petition also alleged improper declaration of information regarding Shyamkumar’s wife's non-agricultural land. After hearing the parties, the Court observed that whether the case said to have been registered against the Shyamkumar was deliberately omitted from the FORM-26 at time of filing of nomination papers has to be decided during the trial. “At this stage, this Court cannot come to a conclusion that since the investigation is pending, it is not necessary to mention in the Form-26 affidavit,” it said..The Court made a similar observation with regard to mentioning of non-agricultural land and agricultural land in the relevant columns.“Whether the alleged false affidavit would amount to violation of the provisions of Section 33 of the RP Act so as to render the election of the first respondent void are to be considered by the Court in the course of trial,” Justice Muralidharan opined.Rejecting the MLA’s petitions, the Court concluded that it cannot be said that election petitions against him do not contain a concise statement of material facts. “In fact, the election petitions disclose cause of action,” the Court said..It further observed that an election vitiated by reason of corrupt practices, illegalities and irregularities as mentioned in Sections 100 and 123 of the Representation of People Act cannot obviously be recognized and respected as the decision of the majority of the electorate.Observing that the Courts are duty bound to examine such allegations, the bench said they cannot be “unduly hyper-technical” in their approach and oblivious of the ground realities.Advocate M Gunedhor represented MLA Thounaojam ShyamkumarSenior Advocate HS Paonam and Advocate BR Sharma represented the respondents[Read Judgment]