Right of Negative Voting: Supreme Court hears petition for insertion of “None of the Above” in Electronic Voting Machines

The Supreme Court has begun hearing a petition [People’s Union for Civil Liberties & Anr. v. Union of India & Anr., WP (c) no. 161/2004] filed by People’s Union for Civil Liberties (PUCL) seeking, inter alia, the right of negative voting. The petition has sought directions to be issued to the Election Commission (EC) to make appropriate provisions in the Electronic Voting Machines (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..The matter is being heard by a three judge Bench comprising of Chief Justice P Sathasivam and Justices Ranjan Gogoi and Ranjana Prakash Desai. The matter was earlier heard by a Division Bench headed by Justice Singhvi which had referred the matter to a larger Bench..When the hearing commenced yesterday, Senior Advocate PP Malhotra, representing the Union government, challenged the maintainability of the petition. He contended 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, therefore, unnecessary..Senior Advocate Rajinder Sachar, appearing for the petitioner, contended that Rules 41(2) and 49O of the Conduct of Election Rules, 1961 (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. He submitted that since there was no “None of the Above” (NOTA) provision in the EVMs, 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, thereby violating the voter’s right to cast a “negative” vote in privacy..Advocate Meenakshi Arora, representing the EC, submitted that though the right to vote was only a statutory right, the freedom to choose from amongst the contesting candidates was certainly a facet of freedom of expression under Article 19 (1) (a). She, however, submitted that the hands of the EC were tied because of the fact that Rule 49B of the Rules required that the EVMs should carry only names of the contesting candidates. Arora further contended that in the light of the decision of the Supreme Court in AC Jose v. Sivan Pillai [1984 SCR (3) 74], the Election Commission could not act ultra vires the Rules. Arora, therefore, suggested that either Rule 49B had to be amended or the Court had to read 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..When the Court rose for the day, the Chief Justice proposed to resume the hearing today but Malhotra pressed for another date citing work elsewhere. A visibly upset Chief Justice directed the matter to be listed for next week but not before expressing his displeasure at this practice by senior lawyers. .Image taken from here.