PUCL v. Union of India on Right to Vote and Article 19

Recently, the apex court of this country gave a very important verdict relating to electoral reforms (inclusion of NOTA, none of the above option). The whole case can be found here. This article is only concerned with what has been said in this case relating to right to vote and article 19. After this case, a lot of legal pundits have started pondering about whether right to vote is merely a statutory right as has been held in the earlier cases or is it something more than that? Is it a Constitutional Right? Does it come under right to freedom of speech and expression?

The present case or as it is popularly known, the NOTA case also has something to say about this issue. I will quote the relevant paragraphs.

1. Paragraph 21- "The said paragraphs recognize that right to vote is a statutory right and also in People’s Union for Civil Liberties (supra) it was held that “a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression”. Therefore, it cannot be said that Kuldip Nayar (supra) has observed anything to the contrary. In view of the whole debate of whether these two decisions were overruled or discarded because of the opening line in Para 362 of Kuldip Nayar (supra) i.e., “we do not agree with the above submissions…” we are of the opinion that this line must be read as a whole and not in isolation. The contention of the petitioners in Kuldip Nayar (supra) was that majority view in People’s Union for Civil Liberties (supra) held 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. It is this contention on which the Constitution Bench did not agree too in the opening line in para 362 and thereafter went on to clarify that in fact in People’s Union for Civil Liberties (supra), a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression. Thus, there is no contradiction as to the fact that right to vote is neither a fundamental right nor a Constitutional right but a pure and simple statutory right. The same has been settled in a catena of cases and it is clearly not an issue in dispute in the present case."

2. Paragraph 24 - "The decision taken by a voter after verifying the credentials of the candidate either to vote or not is a form of expression under Article 19(1)(a) of the Constitution. The fundamental right under Article 19(1)(a) read with statutory right under Section 79(d) of the RP Act is violated unreasonably if right not to vote effectively is denied and secrecy is breached. This is how Articles 14 and 19(1)(a) are required to be read for deciding the issue raised in this writ petition. The casting of the vote is a facet of the right of expression of an individual and the said right is provided under Article 19(1)(a) of the Constitution of India (Vide: Association for Democratic Reforms (supra) and People’s Union for Civil Liberties (supra). Therefore, any violation of the said rights gives the aggrieved person the right to approach this Court under Article 32 of the Constitution of India. In view of the above said decisions as well as the observations of the Constitution Bench in Kuldip Nayar (supra), a prima facie case exists for the exercise of jurisdiction of this Court under Article 32."

3. Paragraph 49 - "However, correspondingly, we should also appreciate that the election is a mechanism, which ultimately represents the will of the people. The essence of the electoral system should be to ensure freedom of voters to exercise their free choice. Article 19 guarantees all individuals the right to speak, criticize, and disagree on a particular issue. It stands on the spirit of tolerance and allows people to have diverse views, ideas and ideologies. Not allowing a person to cast vote negatively defeats the very freedom of expression and the right ensured in Article 21 i.e., the right to liberty."

4. Paragraph 52 - "No doubt, the right to vote is a statutory right but it is equally vital to recollect that this statutory right is the essence of democracy. Without this, democracy will fail to thrive. Therefore, even if the right to vote is statutory, the significance attached with the right is massive. Thus, it is necessary to keep in mind these facets while deciding the issue at hand."

Thus, we see that the cases of Jyoti basu v. debi ghosal, Kuldip Nayar etc. maintained a fine distinction between the right to vote and the freedom of voting as a species of freedom of expression. Still, it is clear that right to vote is neither a fundamental right nor a constitutional right but merely a statutory right. Also, if right not to vote is not available to the voter in an effective manner, his article 19 (1)(a) would get violated since it would defeat the very freedom of expression and liberty mentioned in those articles. Also, there must be secrecy of ballot so that the voter is free from any constraints or influence. This is also very important part of article 19(1)(a). Without secrecy of ballot, the voter will be susceptible to pressure and influence tactics. He will hesitate to opt for the NOTA (none of the above) option if complete secrecy is not present.

The last paragraph that I have quoted elevates the status of Right to Vote. The Court says that even though it is merely a statutory right, the democracy will fail to thrive without it. It is the very life blood of a democracy and the extent to which it affects our lives is tremendous.

I personally think that the freedom of voting will exist only so far as the right to vote exists. If the right to vote is taken away by the statute, the freedom of voting shall also automatically cease to exist. Hence, presently, Right to vote is a mere statutory right.

There are many other important aspects as well attached to this case which I shall deal with in my subsequent posts.