IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

WRIT PETITION (CIVIL) NO.161 OF 2004

People’s Union for Civil Liberties  and another       ...Petitioners   

Versus

Union of India and another …Respondents

J U D G M E N T

G.S. Singhvi, J.

1. Democracy is a part of the basic structure of our Constitution and rule of

law  and  free  and  fare  election  are  basic  features  of  democracy.   Democracy

postulates  that there should be  periodical elections  so  that people  may be  in a

position either to re-elect the same representatives or choose new representatives.

Democracy also contemplates that elections should be free and fair and the voters

should be in a position to vote for the candidates of their choice.  The pre-requisite

of this is that the elections are not rigged and manipulated and the candidates or

their agents are not able to resort to unfair means and malpractices.  These are, in

substance, the observations made by H.R. Khanna, J. in his concurring judgment in

Smt. Indira Nehru Gandhi v. Shri Raj Narain and another [1975 Supp. SCC 1].   

2. Sir Winston Churchill described the importance of vote in a democratic

election in the following words:

“At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little  bit  of  paper –  no amount of  rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point”.

3. In Mohinder Singh Gill v. Chief Election Commissioner [(1978) 1 SCC

405],  the Constitution Bench after quoting the words of  Sir Winston Churchill,

proceeded to add ‘if we may add, the little, large Indian should not be hijacked

from the  course  of  free  and  fair  elections  by  mob  muscle  methods,  or  subtle

perversion of discretion by men “dressed in little, brief authority”.  For “be you ever

so high, the law is above you”.   

4. In Lily Thomas v. Speaker, Lok Sabha and others [(1993) 4 SCC 234],

the Court elucidated meaning of the term voting in the following words:  

“Voting  is  the  formal action  of  will  or  opinion  by  the  person entitled to exercise his right on the subject and issue in question. Right to vote means right to exercise the right in favour or against the motion.  Such a right implies the right to remain neutral as well.”  

5. The scope of the citizen’s right to express his/her opinion through the

medium of the franchise was further developed in Union of India v. Association for

Democratic Reforms and another [(2002) 5 SCC 294 (LB)].   That case emanated

from the directions given by Delhi High Court to the Union of India and Election

Commission  of  India  (for  short  ‘the  Commission’)  to  implement  the

recommendations  made  by  the  Law Commission in its  170th Report  and  make

necessary changes in Rule 4 of the Conduct of Election Rules, 1961 [for short, `the

Rules’].  Simultaneously, the Court considered the prayer made in the writ petition

filed by petitioner no.1 herein under Article 32 of the Constitution for issue of a

direction to the candidates to declare their assets and the facts relating to criminal

case, if any, registered or pending against them before the election.  After noticing

the  background in  which directions  were given by  the  High Court,  this  Court

framed the following questions:

“1. Whether  the  Election  Commission  is  empowered  to  issue directions as ordered by the High Court?

2. Whether a voter — a citizen of this country — has right to get relevant  information,  such  as  assets,  qualification  and involvement in offence  for being educated  and informed for judging the suitability of a candidate contesting election as MP or MLA?”

6. The Court then discussed various facets of the term ‘election’ and width

and amplitude of the Commission’s power under Article 324, referred to various

judgments including those of Mohinder Singh Gill v. Chief Election Commissioner

(supra),   State  of  U.P.  v.  Raj  Narain  [(1975)  4  SCC  428],  Indian  Express

Newspapers (Bombay) (P) Ltd. v. Union of India [(1985) 1 SCC 641], Kanhiya Lal

Omar v. R.K. Trivedi [(1985) 4 SCC 628], Common Cause (A Registered Society) v.

Union of  India [(1996)  2  SCC  752]  and laid down seven propositions of  which

proposition Nos.1, 2, 4, 5 and 7 are extracted below:

“1. The  jurisdiction  of  the  Election  Commission  is  wide enough  to  include  all  powers  necessary for  smooth  conduct  of elections and the word “elections” is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps.

2. The limitation on plenary character of  power is  when Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions.  In case where law is  silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. The Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of  situations  that  may  emerge  from  time  to  time  in  a  large democracy,  as  every  contingency  could  not  be  foreseen  or anticipated by the enacted laws or the rules. By issuing necessary directions,  the  Commission  can  fill  the  vacuum  till  there  is legislation on the subject.  In  Kanhiya Lal  Omar  case the Court construed the expression “superintendence, direction and control” in Article 324(1)  and held that a direction may mean an order issued to a particular individual or a precept which many may have to  follow and it  may be  a specific or a general order and such phrase  should  be  construed  liberally  empowering  the  Election Commission to issue such orders.

4. To maintain the purity of elections and in particular to bring transparency in the process of election, the Commission can ask the candidates about the expenditure incurred by the political parties  and  this  transparency in  the  process  of  election  would include  transparency of  a  candidate  who  seeks  election  or  re- election. In a democracy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of  a candidate who is  to  represent him in Parliament where laws to  bind his  liberty and property may be enacted.

5. The right to get information in democracy is recognised all throughout and it is a natural right flowing from the concept of democracy. At this stage, we would refer to Article 19(1) and (2) of the International Covenant on Civil and Political Rights, which is

as under:  

(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this  right  shall  include  freedom  to  seek,  receive  and  impart information and ideas of all kinds,  regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

7. Under our Constitution,  Article  19(1)(a)  provides  for freedom of speech and expression. Voter’s speech or expression in case of election would include casting of votes, that is to say, voter speaks  out  or  expresses  by  casting  vote.  For  this  purpose, information about the candidate to be selected is a must. Voter’s (little  man  —  citizen’s)  right  to  know  antecedents  including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law- breakers as law-makers.”

7. During the  pendency of  the  appeal  preferred by  the  Union of  India

against  the  directions  given by  Delhi  High Court  in  the  writ  petition  filed  by

Association for Democratic Reforms and another, the Representation of the People

Act, 1951 (for short ‘the Act’) was amended by Amending Act No. 3 of 2002 and

Section 33A and Section 33B were inserted in it.  People’s Union for Civil Liberties

challenged the vires of Section 33B by which it was declared that notwithstanding

anything contained in any judgment, decree or order of any court or any direction

or any other instruction issued by the Election Commission, no candidate shall be

liable to disclose or furnish any such information, in respect of his election, which is

not  required  to  be  disclosed  or  furnished  under  the  Act  or  the  rules  made

thereunder. A three-Judge Bench comprising of M.B. Shah, P. Venkatarama Reddy

and D.M.  Dharmadhikari,  JJ.  expressed  separate  but  concurring opinions  and

declared Section 33B to be unconstitutional – People’s Union for Civil Liberties v.

Union of India [(2003) 4 SCC 399].  M.B. Shah, J. who was a party to the earlier

judgment in Union of  India v. Association for Democratic Reforms and another

(supra), referred to the judgments in N.P. Ponnuswami v. Returning Officer [1952

SCR  218],  G.  Narayanaswami  v.  G.  Pannerselvan  [(1972)  3  SCC  717],  C.

Narayanaswamy v. C.K. Jaffer Sharief [(1994) Supp 3 SCC 170] and observed: “It has to be stated that in an election petition challenging the validity

of  election,  rights  of  the  parties  are  governed  by  the  statutory provisions for setting aside the election but this would not mean that a citizen who has right to be a voter and elect his representative in the Lok Sabha or Legislative Assembly has no fundamental right. Such a voter who is otherwise eligible to cast vote to elect his representative has  statutory  right  under  the  Act  to  be  a  voter  and  has  also  a fundamental  right  as  enshrined  in  Chapter  III.  Merely because  a citizen is a voter or has a right to elect his representative as per the Act, his fundamental rights could not be abridged, controlled or restricted by statutory provisions except as permissible under the Constitution. If any  statutory provision  abridges  fundamental  right,  that  statutory provision would be void. It also requires to be well understood that democracy based on adult franchise is part of the basic structure of the Constitution.  The right of  an adult to  take part in election process either as a voter or a candidate could be restricted by a valid law which does not offend constitutional provisions.”

Shah, J. then held that Section 33B was enacted for doing away with the effect of

judgment in Union of India v. Association for Democratic Reforms (supra) and this

could not have been done by the legislature.  Conclusions (D) and (E) recorded by

Shah, J. which have bearing on this case are extracted below: “(D) The contention that as there is no specific fundamental right conferred  on  a  voter  by  any  statutory  provision  to  know  the antecedents  of  a  candidate,  the  directions  given by  this  Court  are against  the  statutory provisions  is,  on  the  face  of  it,  without  any substance. In an election petition challenging the validity of an election of  a  particular  candidate,  the  statutory  provisions  would  govern respective rights of the parties. However, voters’ fundamental right to know the antecedents of a candidate is independent of statutory rights under the election law. A voter is first citizen of this country and apart from statutory rights, he is having fundamental rights conferred by the Constitution. Members of a democratic society should be sufficiently informed so  that they may cast their votes  intelligently in favour of persons who are to govern them. Right to vote would be meaningless unless  the  citizens  are  well  informed  about  the  antecedents  of  a candidate. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means to cleanse our democratic governing system and to have competent legislatures.

(E) It is established that fundamental rights themselves have no fixed  content,  most  of  them  are  empty  vessels  into  which  each generation must pour its  content in the light of  its  experience.  The attempt of the Court should be to expand the reach and ambit of the fundamental rights by process of judicial interpretation. During the last more than half a decade, it has been so done by this Court consistently. There  cannot  be  any  distinction  between  the  fundamental  rights mentioned in Chapter III  of the Constitution and the declaration of such rights on the basis of the judgments rendered by this Court.”

P. Venkatarama Reddi, J. agreed with M.B. Shah, J. that Section 33B does not pass

the test of constitutionality and proceeded to observe:

“In a democratic republic, it is the will of the people that is paramount

and becomes the basis of the authority of the Government. The will is expressed in periodic elections based on universal adult suffrage held by means of secret ballot. … Nothing is therefore more important for sustenance of democratic polity than the voter making an intelligent and rational choice of  his  or her representative. For this,  the voter should be in a position to effectively formulate his/her opinion and to ultimately express that opinion through ballot by casting the vote. The concomitant  of  the  right  to  vote  which  is  the  basic  postulate  of democracy is  thus  twofold:  first,  formulation of  opinion about  the candidates and second, the expression of choice by casting the vote in favour  of  the  preferred  candidate  at  the  polling  booth.  …  The voter/citizen  should  have  at  least  the  basic  information  about  the contesting  candidate,  such  as  his  involvement  in  serious  criminal offences. … An enlightened and informed citizenry would undoubtedly enhance  democratic  values.  Thus,  the  availability  of  proper  and relevant information about  the  candidate  fosters  and  promotes  the freedom of  speech and  expression both  from the  point  of  view of imparting  and  receiving  the  information.…  I  would  say  that  such information will certainly be conducive to fairness in election process and  integrity  in  public  life.  The  disclosure  of  information  would facilitate and augment the freedom of expression both from the point of view of the voter as well as the media through which the information is publicised and openly debated.”

Reddi, J. referred to the judgment in Union of India v. Association for Democratic

Reforms and another (supra), dictionary meanings of  the word ‘expression’ and

reiterated  that  “freedom of  voting by  expressing  preference for  a candidate  is

nothing but freedom of expressing oneself in relation to a matter of prime concern

to the country and the voter himself”.  His lordship then noted that in Jyoti Basu v.

Debi Ghosal [(1982) 1 SCC 691], the Court had treated the right to elect as neither

a fundamental right nor a common right but pure and simple statutory right and

expressed his view in the following words:

“With great reverence to the eminent Judges,  I  would like to clarify that  the  right  to  vote,  if  not  a  fundamental  right,  is  certainly a constitutional right. The right originates from the Constitution and in accordance with the constitutional mandate contained in Article 326, the right has been shaped by the statute, namely, the RP Act. That, in my understanding, is the correct legal position as regards the nature of the right to vote in elections to the House of the People and Legislative Assemblies. It is not very accurate to describe it as a statutory right, pure and simple.  Even with this  clarification,  the  argument of  the learned Solicitor General that the right to vote not being a fundamental right, the information which at best facilitates meaningful exercise of that right cannot be read as an integral part of any fundamental right, remains  to  be  squarely met.  Here,  a  distinction  has  to  be  drawn

between the conferment of the right to vote on fulfilment of requisite criteria and the culmination of that right in the final act of expressing choice towards a particular candidate by means of ballot.  Though the initial right cannot be placed on the pedestal of a fundamental right, but, at the stage when the voter goes to the polling booth and casts his vote, his freedom to express arises. The casting of vote in favour of one or the other candidate tantamounts to expression of his opinion and preference and that final stage in the exercise of voting right marks the accomplishment of freedom of expression of the voter. That is where Article 19(1)(a) is attracted. Freedom of voting as distinct from right to vote is thus a species of freedom of expression and therefore carries with it the auxiliary and complementary rights such as right to secure information about the candidate which are conducive to the freedom.”

Reddi, J. then proceeded to record 9 Conclusions of which Conclusion Nos.1 and 2

read as under:

“(1) Securing information on the  basic  details  concerning the candidates  contesting  for  elections  to  Parliament  or  the  State Legislature promotes freedom of expression and therefore the right to information forms an integral part of Article 19(1)(a).  This right to information is,  however, qualitatively different from the right to get information about public  affairs or the right to  receive information through the press and electronic media, though, to a certain extent, there may be overlapping.

(2) The right to vote at the elections to the House of the People or  Legislative  Assembly  is  a  constitutional  right  but  not  merely a statutory right; freedom of voting as distinct from right to vote is a facet  of  the  fundamental  right  enshrined  in  Article  19(1)(a).   The casting  of  vote  in  favour of  one  or the  other candidate  marks the accomplishment of freedom of expression of the voter.”

D.M.  Dharmadhikari, J.  agreed with most  of  the conclusions recorded by M.B.

Shah and P.V. Reddi, JJ. and observed: “Democracy based on “free and fair elections” is considered as a basic feature of the Constitution in the case of Kesavananda Bharati. Lack of adequate legislative will to  fill  the vacuum in law for reforming the election process in accordance with the law declared by this Court in the case of  Assn. for Democratic Reforms obligates this Court as an important organ in constitutional process to intervene.

In my opinion, this Court is obliged by the Constitution to intervene because the legislative field,  even after the passing of the Ordinance and the Amendment Act, leaves a vacuum. This Court in the case of Assn.  for  Democratic  Reforms has  determined  the  ambit  of fundamental “right of information” to a voter. The law, as it stands today  after  amendment,  is  deficient  in  ensuring  “free  and  fair

elections”. This Court has, therefore, found it necessary to strike down Section 33-B of the Amendment Act so as to revive the law declared by this Court in the case of Assn. for Democratic Reforms.

With these words, I agree with Conclusions (A) to (E) in the opinion of Brother Shah, J. and Conclusions (1), (2), (4), (5), (6), (7) and (9) in the opinion of Brother P.V. Reddi, J.”

8. By the above noted two judgments, a new dimension was given to the

right  of  sovereign i.e.  the  people  to  make choice  of  their representatives  after

knowing  the  assets  and  antecedents  of  the  persons  seeking  election  to  the

legislatures.   These  judgments  also  gave  an  expansive  meaning  to  the  term

‘expression’ used in Article 19(1)(a) by declaring that in the democratic set up of

our country the elector’s right to have complete information about the candidates

and then express his choice for a particular person, are necessary concomitant of the

freedom of expression guaranteed under Article 19(1)(a).

9. Now  by  means  of  this  petition,  People’s  Union  for  Civil  Liberties

(petitioner no.1), which has been fighting for protection of human rights and civil

liberties of the people for last three decades and Era Sezhiyan (petitioner no.2), who

is one of the founder members of Dravida Munnetra Kazhagam (DMK) and a well

known parliamentarian seek to add another dimension to the sovereign’s right to

express his choice for the candidate at an election by contending that right to vote in

secrecy includes the right of negative voting.  They have prayed for striking down

Rules  41(2)  and  49-O  of  the  Rules  and  also  for  issue  of  a  direction  to  the

Commission to  make appropriate provision in the  ballot  papers  and Electronic

Voting  Machines  (EVMs)  so  as  to  enable  the  voters  to  exercise  their right  of

negative voting and also ensure that exercise of this right is kept secret.  To support

their plea that secrecy of ballot a sine qua non for exercise of the right of freedom of

expression guaranteed to the electors under Article 19(1)(a) of the Constitution, the

petitioners have relied upon Article 21(3) of Universal Declaration of Human Rights

which were adopted by the General Assembly of the United Nations in December,

1948, Article 25(b) of the International Covenants on Civil and Political Right and

the judgments of this Court in Mohinder Singh Gill v. Chief Election Commissioner

(supra) and Union of  India v.  Association for Democratic Reforms and another

(supra).  They also referred to letter dated 10.12.2001 in which the Commission has

advocated in favour of the electors’ right of negative voting.  The petitioners have

pleaded that Rules 41 and 49-O of the Rules are violative of Articles 19(1)(a) and 21

of the Constitution and Section 128 of the Act inasmuch as the provisions contained

therein violate secrecy of the vote and voter.  It is also the petitioners’ case that in

exercise of its power under Article 324 of the Constitution, the Commission can

direct modification of the existing EVMs to enable the voters to exercise their right

of negative voting.       

10. In the counter-affidavit filed on behalf of the Union of India, the very

maintainability of  the writ petition has been questioned on the ground that the

petitioners have not claimed violation of any of their fundamental rights enshrined

in Part III of the Constitution.  The stand of Union of India is that the right of the

elector to vote is a statutory right and not a fundamental right and, therefore, the

writ petition filed under Article 32 cannot be entertained.  The further case of the

Union of India is that the right of an elector to vote does not include the right of

negative  voting  and,  therefore,  Rules  41(2)  and  49-O  cannot  be  dubbed  as

unconstitutional or ultra vires the provisions of Section 128 of the Act.   

11. On behalf of the Commission, its Secretary, Shri K.F. Wilfred has filed

an affidavit supporting the cause of the petitioners.  In paragraphs 3(i) and (ii) of

his  affidavit,  Shri Wilfred has averred that the elector may like to  refrain from

casting vote for several reasons including the one that he does not consider any of

the candidates as deserving of his vote and that this can be expressed either by

staying away from the polling or by going to the polling station and informing the

Presiding Officer of  his  intention not to  vote or by positively discarding all the

candidates.  According to Shri Wilfred, the Election Commission had considered

the issue of providing a separate panel in the Balloting Unit of the EVMs, so that

the elector can reject all the candidates without disclosing his identity and to this

effect letters dated 10.12.2001 and 5.7.2004 were sent to the Government of India,

Ministry of Law, Justice and Company Affairs but necessary amendment has not

been carried out in the Act and Rules.

12. Shri  Rajinder  Sachar,  learned  senior  counsel  appearing  for  the

petitioners argued that  the  right of  an elector to  vote at an election in secrecy

includes the right of negative voting qua all candidates and the Commission is duty

bound to provide appropriate mechanism in the EVMs for effective exercise of that

right.   Learned senior counsel  referred to  the  judgments  in  Union of  India v.

Association for Democratic Reforms (supra) and People’s Union for Civil Liberties

(PUCL) v. Union of India (supra) and argued  that when the Court has already

recognized the right of an elector to know the antecedents of the candidates and

freely exercise his franchise as an integral part of the fundamental right guaranteed

under Article 19(1)(a) of the Constitution, Rules 41(2) and 49-O of the Rules are

liable to be declared unconstitutional because they violate the elector’s right to vote

in secrecy.  Shri Sachar submitted that the Court should direct the Commission to

take effective and adequate measures to protect the right of an elector not only to

refuse to cast vote after going to the polling booth but also the right to indicate

positive negation for all candidates and that too in secrecy because adult suffrage

has been treated as an essential component of democracy.   Learned senior counsel

pointed out that even though some of the provisions contained in the Act and Rules

recognise the importance of  secrecy of  ballot,  Rules 41(2)  and 49-O destroy the

freedom of an elector when he refuses to vote in favour of any candidate, inasmuch

as the agents of the candidates are able to easily identify the person who refuses to

cast vote.  As regards, the objection raised by respondent no.1 to the locus of the

petitioners  to  file  petition  under  Article  32  of  the  Constitution,  Shri  Sachar

submitted that in view of two judgments of three-Judge Benches whereby the right

of an elector to make choice of the candidate has been treated as fundamental right

guaranteed under Article 19(1)(a) of the Constitution, the petitioners are entitled to

seek intervention of the Court for striking down the impugned rules and for issue of

a mandamus to the Commission to take steps under Article 324 for effective exercise

of the right of negative voting vested in the electors.   

13. Ms.  Meenakshi Arora, learned counsel for the Commission submitted

that in view of the judgments of this Court in Union of India v. Association for

Democratic Reforms (supra) and People’s Union for Civil Liberties (PUCL) and

another v. Union of India and another (supra), the petitioners have the right to

challenge  the  constitutionality  of  the  impugned  rules  and  seek  direction  for

appropriate  modification  in  the  EVMs  to  enable  the  electors  to  exercise  their

fundamental rights of negative voting.  Ms. Arora argued that if the electors right to

know the assets and antecedents of the candidates and then make their choice is a

fundamental right guaranteed under Article 19(1)(a), there is no rationale to exclude

the right of  negative voting from the purview of  that Article.   Learned counsel

highlighted the distinction between the right to elect and physical exercise of the

right to vote by pointing out that while the former falls in the domain of statutory

right, the latter is a necessary concomitant of the freedom of expression guaranteed

under Article 19(1)(a).  Ms. Arora then submitted that if the rules are amended or

the Court so directs, the Commission can take steps to modify existing EVMs to

enable the electors to exercise their right of negative voting in secrecy.

14. Shri  Amarendra Sharan,  learned  Additional  Solicitor  General  relied

upon the judgments of the Constitution Benches in Ponnuswami’s case  and Kuldip

Nayar v. Union of India [(2006) 7 SCC 1] and argued that the writ petition should

be dismissed as not maintainable because the right to vote at an election has not

been treated as a fundamental right guaranteed under Part III of the Constitution.

He submitted that the right to elect and to vote can, at best be regarded as statutory

right available to an elector under the Act but the same cannot be treated as flowing

from the right to freedom of expression guaranteed under Article 19(1)(a) of the

Constitution.  Shri Sharan pointed out that the framers of the Constitution have

recognized the importance of secrecy of ballot by making specific provision to that

effect  in the election of  President  and Vice-President  under Articles 55  and 66

respectively, but no such provision has been made in Article 326 which postulates

election to the House of People and the Legislative Assemblies on the basis of adult

suffrage and argued that the right of negative voting in secrecy cannot be read into

Article 326 of  the Constitution by implication.  Learned counsel submitted that

secrecy of ballot is effectively protected by Rule 49-O of the Rules and violation

thereof is punishable under Section 128(2) of the Act and the impugned provisions

cannot be nullified by assuming that the same are violative of Article 19(1)(a) of the

Constitution.   Learned Additional Solicitor General lastly submitted that Article

324 cannot be used by the Commission for giving new dimension to the secrecy of

ballot which is not envisaged by the Constitution and the Act.

15. We have given our most anxious consideration to the entire matter.  In

view of the objection raised by the learned Additional Solicitor General, we shall

first deal with the issue of maintainability of the writ petition.  In last five decades,

the Courts of this country have repeatedly held that democracy is one of the basic

features of  the Constitution and free and fair election based  on universal adult

suffrage is an essential component of democracy.  Till 1996, this Court treated the

right to  elect as  a statutory right only because it  did  not  have the occasion to

consider the issue in the backdrop of concerted attempts made by the interested

quarters to corrupt and hijack the process of election and participation in election of

persons with devious antecedents.  In Jyoti Basu v. Debi Ghosal (supra), this Court

while allowing the appeal filed by appellant Jyoti Basu,  who was elected to the

House of People from 19-Barrackpore Parliamentary constituency against the order

of the High Court refusing to strike down the names of some of the ministers of the

West Bengal Government, who were impleaded as parties to the election petition,

referred to the judgments in N.P.  Ponnuswami v. Returning Officer (supra) and

Jagan Nath v. Jaswant Singh [1954 SCR 892] and held:

“The right to elect, to be elected and to dispute an election are neither fundamental rights nor common law rights but  are simply statutory rights and therefore are subject to statutory limitations.  Similarly, an election petition is not an action at common law, nor in equity but is a statutory proceeding to which only statutory rules apply.  The statute concerned with the election matters is the Representation of the People Act which is a complete and self-contained code and within it must be found  any rights  claimed  in  relation  to  an  election  or  an  election dispute.”

In Rama Kant Pandey v. Union of India [(1993) 2 SCC 438] a three-Judge Bench

examined challenge to the Representation of the People (Amendment) Ordinance,

1992  (Ordinance  No.1/1992)  and  the  Representation  of  the  People  (Second

Amendment)  Ordinance,  1992  (Ordinance  No.2/1992)  by  which  provision  for

countermanding elections  in certain circumstances  was  amended  and period  of

twenty days specified in Section 30 was reduced to fourteen days.  It was argued on

behalf of the petitioner that the voters’ right to choose their representative for a

particular  constituency  cannot  be  whittled  down  by  the  amendments.   While

rejecting the argument, the Court recorded the following preface:

“Before proceeding to examine the merits of the argument addressed on behalf of the petitioner it will be useful to note that the right to vote or to stand as a candidate for election is neither a fundamental nor a civil right. In England also it has never been recognised as a common law right.”

16. Faced  with  serious  criticism of  attempts  made  by  vested  interest  to

corrupt the process of election by clandestinely providing funds in the form of black

money to the political parties, Parliament amended the Companies Act, Income-Tax

Act and the Representation of the People Act.  The object of these amendments was

to bring transparency in election-funding.   Common Cause,  a society registered

under  the  Societies  Registration  Act  filed  petition  under  Article  32  of  the

Constitution for issue of a direction to the political parties to annually file return of

income.  A two-Judge Bench examined the issue at some length and declared that

political parties are under a statutory obligation to file return in accordance with the

provisions of the Income Tax Act. The Court also directed the Ministry of Finance

to make investigation/enquiry against each of the defaulting political parties and

initiate necessary action including penal action under Section 276-CC of the Income

Tax Act. While dealing with the powers of the Commission under Article 324, the

Court held as under:

“Superintendence  and  control  over the  conduct  of  election  by  the Election Commission envisaged under Article 324 include the scrutiny of all expenses incurred by a political party, a candidate or any other association or body of persons or by any individual in the course of the election.  The expression “Conduct of election” in Article 324 of the Constitution of India is wide enough to include in its sweep, the power of the Election Commission to issue – in the process of the conduct of elections – directions to the effect that the political parties shall submit to  the  Commission  for  its  scrutiny,  the  details  of  the  expenditure incurred or authorised by the political parties in connection with the election of their respective candidates.”

17. After six years came the judgment in Union of India v. Association for

Democratic  Reforms  (supra)  which  can  be  termed  as  an  important  judicial

benchmark in the field of electoral reforms.  In that judgment, the Court declared

that where law is silent, Article 324 is a reservoir of power for the Commission and

the same can be used for free and fair election; that the Commission can fill in the

vacuum till there is a legislation on the subject to meet the particular situation or

contingency; to maintain purity of election and to bring transparency in the process

of election, the Commission can ask the candidate about the expenditure incurred by

the political parties. The Court further held that the elector has right to know full

particulars of  a candidate who is  to  represent him in legislature and that under

Article 19(1)(a) voter’s right of  speech and expression in case of  election would

include  casting  of  votes.  Proposition  No.7  extracted  hereinabove  contains  this

enunciation of law.

18. The  ratio  of  the  judgment  in  Union  of  India  v.  Association  for

Democratic  Reforms  (supra)  was  reiterated  by  another  three-Judge  Bench  in

People’s Union for Civil Liberties v. Union of India (supra).  Two of the Judges

constituting the Bench, namely, M.B. Shah and P. Venkatarama Reddi, JJ. recorded

separate detailed opinions.  Shah, J. held that an elector who is otherwise eligible to

cast vote and to elect his representative has statutory right under the Act to be a

voter and has also a fundamental right as enshrined in Chapter III.  Reddi, J. drew

fine distinction between conferment of the right to vote on fulfillment of requisite

criteria and the culmination of that right in the final act of exercising choice towards

a particular candidate by means of  ballot and held that though the initial right

cannot be placed on the pedestal of a fundamental right, but casting of a vote in

favour of one or the other candidate tantamounts to expression of his opinion and

preference  and  exercise  of  that  right  marks  accomplishment  of  freedom  of

expression of voter where Article 19(1)(a) is attracted.  In the opinion of Reddi, J.,

freedom of  voting as distinct  from the right to  vote is  a species  of  freedom of

expression and therefore carries with it the auxiliary and complementary rights such

as  right  to  secure information about  the  candidate  which are conducive to  the

freedom.  The 3rd Member of the Bench, namely, D.M. Dharmadhikari, J. expressed

his agreement with the other two Judges.   

19. In Kuldip Nayar v. Union of India (supra) on which reliance has been

placed  by  the  learned  Additional  Solicitor  General,  the  Constitution  Bench

examined the petitioner’s challenge to the Representation of People (Amendment)

Act 40 of 2003 by which the requirement of domicile in the concerned State for

getting elected to  the Council of  States  was deleted.   The Court also examined

validity of the amendments in Sections 59, 94 and    128 of the Act by which open

ballot system was introduced for election to the Council of States.  According to the

petitioner, this system violated the principle of secrecy, which is the essence of free

and  fair  elections.   While  dealing  with  the  question  whether  deletion  of  the

requirement of domicile was ultra vires the Constitution, the Court adverted to the

concept of federalism, role of Upper House – Council of States vis-à-vis House of

People  and  held  that  the  Amending  Act  No.40  of  2003  does  not  violate  the

provisions of  the Constitution.   The Court then considered the issue relating to

violation of secrecy of ballot, referred to the amendments made in Sections 59, 94

and 128 of the Act and held that the requirement of maintenance of secrecy of voting

is  now made  subject  to  exception qua election to  the  Council  of  States.   The

Constitution  Bench  then  reiterated  that  democracy  is  a  basic  feature  of  the

Constitution and the edifice of democracy rests on a system of free and fair election,

referred to Keshvananda Bharti v. State of Kerala [1973 (4) SCC 225], Smt. Indira

Nehru Gandhi v. Shri Raj Narain and another (supra), Mohinder Singh Gill v. Chief

Election Commissioner (supra), S. Raghubir Singh Gill v. S Gurcharan Singh Tohra

[1980 Supp SCC  53],  Kihoto Hollohan v.  Zachillhu [1992 Supp.  (2)  SCC  651],

Union of India vs. Association for Democratic Reforms (supra), People’s Union for

Civil Liberties v. Union of India (supra) and then proceeded to consider whether

right to vote is a constitutional right or a fundamental right.  On this aspect of the

matter, the Constitution Bench referred to paragraphs 42, 46.4,  46.5,  46.7 of the

judgment in Union of India vs.  Association for Democratic Reforms (supra) and

noted the views expressed in Jyoti Basu v. Debi Ghosal (supra), People’s Union for

Civil Liberties v. Union of India (supra) and Rama Kant Pandey v. Union of India

(supra).  In para 356, the Court extracted para 62 of the judgment of Shah, J. in

People’s Union for Civil Liberties v. Union of India (supra).  In paragraphs 356 to

359, the Court extracted the observations of P.Venkatarama Reddi, J.  In para 360,

the  Court  referred to  the  observations  made  by  D.M.  Dharamadhikari,  J.  and

declined to  accept  the  argument of  the petitioners that as per majority view in

People’s  Union for Civil Liberties  v.  Union of  India (supra),  right to  vote is  a

constitutional right besides it being a facet of fundamental right under Article 19(1)

(a) of the Constitution.  For the sake of convenience, paragraphs 361 to 364 of the

judgment in Kuldip Nayar v. Union of India (supra) are extracted below:-

“361. The argument of the petitioners is that the majority view in People’s Union for Civil Liberties, therefore, was that a 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.

362. We do not agree with the above submission. It is clear that a fine distinction was drawn between the right to vote and the freedom of voting as a species of freedom of expression, while reiterating the view in Jyoti Basu v. Debi Ghosal that a right to elect, fundamental though it is to democracy, is neither a fundamental right nor a common law right, but pure and simple, a statutory right.

363. Even otherwise, there is no basis to contend that the right to vote and elect representatives of the State in the Council of States is a constitutional  right.  Article  80(4)  merely deals  with  the  manner of election of the representatives in the Council of States as an aspect of the  composition  of  the  Council  of  States.  There is  nothing  in  the constitutional provisions declaring the right to vote in such election as an absolute right under the Constitution.

364. Be that as it may, the moot contention that has been raised by the petitioners is that the election of Members of the Council of States is provided for in the Constitution and, therefore, is a part of the Constitution and that it is an inherent requirement of the principle of  free  and  fair  election  that  the  right  to  vote  be  invariably accompanied by the right of secrecy of vote so as to ensure that the freedom of expression through vote is real.”

20. We have carefully read paragraphs 349 to 364 of the aforesaid judgment,

which are found under the head Right to Vote – A Constitutional / Fundamental

Right and find that even though the Constitution Bench did not overrule or discard

the ratio of the two three-Judges Bench judgments in Union of India v. Association

for Democratic Reforms (supra) and  People’s Union for Civil Liberties v. Union of

India (supra), the opening line of para 362 tend to create a doubt  whether the right

of voter to exercise his choice for the candidate is a necessary concomitant of the

voter’s freedom of expression guaranteed under Article 19(1)(a) of the Constitution.

Therefore, this issue needs a clear exposition of law by a larger Bench.  We are

further of the view that width and amplitude of the power of the Commission under

Article  324  needs  further consideration  by  a  larger Bench  in  the  light  of  the

judgments of this Court whereby the elector’s right to be informed about the assets

and antecedents  of  the persons seeking election to the legislature has been duly

recognized.

21. The file of the case may, therefore, be placed before Hon’ble the Chief

Justice for appropriate order.

......................J.     [B.N. AGRAWAL]

......................J.     [G.S. SINGHVI]

New Delhi, February 23, 2009.